STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) versus A. P. STATE WAKF BOARD & ORS.

[2022] 19 S.C.R.

ASTATE OF ANDHRA PRADESH

(NOW STATE OF TELANGANA)

A. P. STATE WAKF BOARD & ORS.

B(Civil Appeal No. 10770 of 2016)

FEBRUARY 07, 2022

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Wakfs – Publication of Notification issued by Wakf Board inCthe State Government Gazette – Effect of – Whether the State isestopped to challenge such notification – Held: The Wakf Board isa statutory authority under the 1954 Act as well as under the 1995Act – The Official Gazette has to carry any notification at the instanceof the Wakf Board – The State Government is not bound by thepublication of the notification in the Official Gazette at the instanceDof the Wakf Board only for the reason that it has been published inthe Official Gazette – The publication of notice in an OfficialGazette has presumption of knowledge to the general public asan advertisement published in newspaper – The mere reason thatthe notification was published in the State Government gazette isEnot binding on the State Government – Wakf Act, 1995 – Wakf Act,1954.

Wakfs – Wakf Act, 1995 – ss.40 and 32(2)(n) – Wakf property– Whether power to investigate and determine the nature of propertyis an administrative function or quasi-judicial function as anFinquiry is required to be conducted before any property is declaredto be Wakf property – Power of the Wakf Board to investigate anddetermine the nature and extent of Wakf – Held: Is not purely anadministrative function – The power to determine under s.32(2)(n)is the source of power but the manner of exercising that power iscontemplated u/s.40 – An inquiry is required to be conducted if aGBoard on the basis of information collected finds that the propertyin question is wakf property – An order passed thereon is subjectto appeal before the Wakf Tribunal, after an inquiry required isconducted in terms of sub-section (1) of s.40 – Therefore, therecannot be any unilateral decision without recording any reasonHthat how and why the property is included as wakf property – The

finding of the Wakf Board is final, subject to the right of appealunder sub-section (2) – Thus, any decision of the Board is requiredto be as reasoned order which could be tested in appeal beforethe Wakf Tribunal – The Wakf Board has power to determine thenature of the property as wakf under s.32(2)(n) but after complyingwith the procedure prescribed as contained in s.40 – Such procedurecategorically prescribes an inquiry to be conducted – The conductof inquiry pre-supposes compliance of the principles of naturaljustice so as to give opportunity of hearing to the affected parties –On facts, the proceedings produced by the Wakf Board do not showany inquiry conducted or any notice issued to either of the affectedparties – Primarily, two factors had led the Wakf Board to issue theimpugned Errata notification, that is, order of the NazimAtiyat andthe second survey report – Both may be considered as materialavailable with the Wakf Board but in the absence of an inquiryconducted, it cannot be said to be in accordance with the procedureprescribed u/s.40 – Since there is no determination of the factwhether the property in question is wakf property after conductingan inquiry in terms of s.40(1), the Errata notification cannot bedeemed to be issued in terms of s.32 r/w s.40.

Wakfs – Wakf Act, 1995 – s.40(3), proviso – Reliance onproviso to s.40(3) of 1995 Act, contemplating notice to the registeredtrust or society in case the Wakf Board has any reason to believethat any property is Wakf and is registered under any of the Acts –Held: Is absolutely misconceived – These provisions deal with analtogether different situation – If trust or society is alreadyregistered but the Wakf Board finds it to be Wakf, the statutecontemplates notice to the authority – It does not mean that suchtrust or society is not required to be heard – The hearing to Trust orSociety would also be as per the principles of natural justice.Wakfs – Entitlement of Government to dispute validity ofNotification issued by Wakf Board before the Writ Court u/Art. 226of the Constitution – Held: State Government, as juristic entity,has right to protect its property through the writ court, just as anyindividual could have invoked the jurisdiction of the High Court –On facts, the State Government was competent to invoke the writjurisdiction against the action of the Wakf Board to declare theland in question as wakf property – Constitution of India – Art.226.

AWakfs – Wakf Act, 1995 – s.5 and s.32(2)(n) r/w s.40 – Erratanotification published by Wakf Board in the year 2006, 17 yearsafter the first notification in 1989 – Challenge to – Held: In thefacts of the present case, the Errata notification was nothing but afresh notification altogether – Errata is correction of mistake –Hence, only arithmetical and clerical mistakes could be correctedBand the scope of the notification could not be enlarged by virtue ofan errata notification – As against 5506 sq. yards of land notifiedas wakf property in the year 1989, large area of 1654 acres and 32guntas of land could not be included under the guise of an erratanotification as it is not case of clerical or arithmetical mistake butCinclusion of large area which could not be done without conductinga proper Inquiry either under s.32(2)(n) r/w s.40 or on the basis ofsurvey report which was called by the State Government byappointing Survey Commissioner.

Wakfs – Whether on facts, the High Court was justified inDrelegating the parties to statutory remedy before the Wakf Tribunal– Held: High Court examined the merits of the contention raisedincluding the documents filed so as not to accept the contentions ofthe State – Though the High Court expressed the same to be primafacie view, but in fact, nothing was left to suggest that it was not afinal order as far as the State is concerned with the order of theEdismissal of its writ petition – Even otherwise, the questions raisedwere interpretation of the statutes, the Farmans issued by Sovereignfrom time to time and the interpretation of the document to the factsof the present case – It is not case where any oral evidence wouldbe necessary or is available now – Since the question was in respectFof interpretation of the statutes and the documents primarily issuedby the Sovereign, the matter needs to be examined on merits asdetailed arguments have been addressed by counsel for the parties– Thus, the High Court erred in law, in the facts and circumstancesof the case, to relegate the parties to the statutory remedy.

GWakf Act, 1995 – ss.5 and 105 – Publication of Erratanotification u/s.5 – Powers conferred on the Wakf Board – Non-submission of second survey report to the State Government – Effect– Plea that once the Wakf Board had the power to publish notificationafter perusing the various documents, the same could not be said tobe illegal only for the reason that report was not submitted to theH

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.A. P. STATE WAKF BOARD

State Government as contemplated by sub-section (1) of s.5 –Tenability of – Held: The plea that the notification is in terms of s.5of 1995 Act is not tenable – Admitted case that the second surveyreport was not submitted to the State Government and such reporthas not even been forwarded by the Government to the Wakf Board– The Wakf Board may have right to requisition of any documentin terms of power conferred u/s.105, but if procedure is prescribedfor issuance of notification, it could be issued only in the mannerprescribed and not in any other manner – When statute vestscertain power in an authority to be exercised in particular manner,then the said authority has to exercise the same only in the mannerprescribed by the statute itself – Therefore, it cannot be said thatsince submission of the second survey report to the State Governmentwas only ministerial action, therefore, the Board had thejurisdiction to publish notification u/s.5.Right of the State to acquire property – Land dedicated forpious and religious purpose is not immune from its vesting with theState.

Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952–Jurisdiction of the Atiyat Court – Held: Is limited to disputes relatingto Atiyat grants as defined in the Enquiries Act.

Words and Phrases – Word “errata” – Scope and meaning of– Held: “Errata” is term of French origin which means thingthat should be corrected – It means mistake in printing or writing.

Allowing the appeals, the Court

HELD: 1. In the case at hand, the High Court has examinedthe merits of the contention raised including the documents filedso as not to accept the contentions of the State. Though the HighCourt has expressed the same to be prima facie view, but in fact,nothing was left to suggest that it was not final order as far asthe State is concerned with the order of the dismissal of its writpetition. Even otherwise, the questions raised before this Courtare the interpretation of the statues, the Farmans issued bySovereign from time to time and the interpretation of thedocument to the facts of the present case. It is not case whereany oral evidence would be necessary or is available now. In fact,that was not even the suggestion before this Court. Since the

Aquestion was in respect of interpretation of the statutes and thedocuments primarily issued by the Sovereign, the matter needsto be examined on merits as detailed arguments have beenaddressed by counsel for the parties. Thus, the High Court erredin law, in the facts and circumstances of the case, to relegate theparties to the statutory remedy before the Wakf Tribunal. [ParaB119][1316-A-D]

2. The State Government, as juristic entity, has right toprotect its property through the writ court, just as any individualcould have invoked the jurisdiction of the High Court. Therefore,the State Government is competent to invoke the writ jurisdictionCagainst the action of the Wakf Board to declare the land measuring1654 acres and 32 guntas as wakf property. [Para 125][1318-F-G]

3. The presence of the Government Pleader before theNazim Atiyat was for limited purpose as the grants were to beDpaid by State Government. The State was not party either beforethe Nazim Atiyat or before the High Court. The State would bebound by the orders, if it was impleaded as party as it is likely tobe affected on account of the orders passed. The liability of Statefor payment of grant was not in dispute but the question was as toEwhom the grants would be payable. Thus, the presence ofGovernment Pleader was for the limited purpose of facilitatingthe implementation of the orders passed. perusal of the recordof the Wakf Board, shows that the Errata notification was publishedwhen the same was sent by the Chief Executive Officer of theWakf Board to the Commissioner, Government Printing PressFon 13.03.2006. This publication of notification was made underSection 5(2) of the 1995 Act under the authority of the ChiefExecutive Officer of the Wakf Board. Hence, the notification wasnot at the instance of the State Government but was an act of theWakf Board alone. The argument raised that since the ErrataGnotification was published in State Government Gazette,therefore, the State cannot turn around to say that they had noknowledge or that they are not bound by the notification sopublished is not tenable. The purpose, object and scope of thepublications in the Official Gazette is not what is sought to becontended. The Court is to presume the genuineness of anyH

documents published in any Official Gazette as contemplated bySection 81 and Section 114 (e) of the Evidence Act, 1872. Thepublication in the Official Gazette is not only for the affairs of theState but has multiple uses. [Para 129, 130, 131][1320-B-F]

4. The Wakf Board is statutory authority under the 1954Act as well as under the 1995 Act. Thus, the Official Gazette hadto carry any notification at the instance of the Wakf Board.Therefore, the State Government is not bound by the publicationof the notification in the Official Gazette at the instance of theWakf Board only for the reason that it has been published in theOfficial Gazette. The publication of notice in an Official Gazettehas presumption of knowledge to the general public as anadvertisement published in newspaper. Therefore, mere reasonthat the notification was published in the State Government gazetteis not binding on the State Government. [Para 132][1321-G-H]

5. The Wakf Board has power to determine the nature ofthe property as wakf under Section 32(2)(n) but after complyingwith the procedure prescribed as contained in Section 40. Suchprocedure categorically prescribes an inquiry to be conducted.The conduct of inquiry pre-supposes compliance of the principlesof natural justice so as to give opportunity of hearing to theaffected parties. The proceedings produced by the Wakf Boarddo not show any inquiry conducted or any notice issued to eitherof the affected parties. Primarily, two factors had led the WakfBoard to issue the Errata notification, that is, order of the NazimAtiyat and the second survey report. Both may be considered asmaterial available with the Wakf Board but in the absence of aninquiry conducted, it cannot be said to be in accordance with theprocedure prescribed under Section 40 of the 1995 Act. [Para146][1329-F-H]

6. Since there is no determination of the fact whether theproperty in question is wakf property after conducting an inquiryin terms of Section 40(1) of the 1995 Act, the Errata notificationcannot be deemed to be issued in terms of Section 32 read withSection 40 of the 1995 Act. Such determination alone could have

Aconferred right on the affected parties to avail the remedy ofappeal under Section 40 of the 1995 Act. [Para 147][1330-A-B]

7. The reliance on proviso to Section 40(3) of 1995 Act,contemplating notice to the registered trust or society in casethe Board has any reason to believe that any property is WakfBand is registered under any of the Acts is absolutely misconceived.These provisions deal with an altogether different situation. Atrust or society is already registered but the if Board finds it tobe Wakf, the statute contemplates notice to the authority. It doesnot mean that such trust or society is not required to be heard.The hearing to Trust or Society would also be as per the principlesCof natural justice. [Para 148][1330-C-D]

8.1. The question to be examined was whether the Boardcould issue the Errata notification after lapse of 17 years fromthe date of first notification, i.e., 9.2.1989. The exercise leadingto the notification started with letter from Syed SafiullahDHussaini, the Mutawalli on 30.1.2005. He is the mutawallimentioned in the first notification published in the year 1989.Since the notification was issued with him as Mutawalli, then hisinaction for 17 long years speaks volumes of his bona-fide ininitiating the process to include the large area of land as wakf.E[Para 152][1332-C-D]8.2. In the facts of the present case, the Errata notificationis nothing but fresh notification altogether. Errata is correctionof mistake. Hence, only arithmetical and clerical mistakes couldbe corrected and the scope of the notification could not beFenlarged by virtue of an errata notification. As against 5506 sq.yards of land notified as wakf property in the year 1989, largearea of 1654 acres and 32 guntas of land could not be includedunder the guise of an errata notification as it is not case ofclerical or arithmetical mistake but inclusion of large area whichcould not be done without conducting proper Inquiry eitherGunder Section 32(2) (n) read with Section 40 or on the basis ofsurvey report which was called by the State Government byappointing Survey Commissioner. [Para 154][1333-G-H; 1334-

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.A. P. STATE WAKF BOARD

9. The Enquiries Act is applicable in respect of Atiyat grantsalone. Atiyat grants after the commencement of Jagir AbolitionRegulation mean only the commutation sum payable under theCommutation Regulation or the compensation payable under theInams Abolition Act or cash grants etc. The Jurisdiction of theAtiyat Court would be limited to the disputes relating to Atiyatgrants as defined in the Enquiries Act. [Paras 162 and 165][1336-D-E; 1338-B]

CIT v. Anjum M.H. Ghaswala (2002) 1 SCC 633: [2001] 4 Suppl. SCR 303 – followed.

Director of Settlements, A.P. & Ors. v. M.R. Apparao &Anr. (2002) 4 SCC 638 : [2002] 2 SCR 661 and BBabu Verghese v. Bar Council of Kerala (1999) 3 SCC422 : [1999] 1 SCR 1121 – relied on.

Rashid Wali Beg v. Farid Pindari & Ors. (2021) SCCOnline SC 1003; Board of Wakf, West Bengal & Anr. v.Anis Fatma Begum & Anr. (2010) 14 SCC 588; Unionof India v. T.R. Varma, AIR 1957 SC 882; Union ofIndia & Ors. v. Ghaus Mohammad AIR 1961 SC 744: [1962] SCR 744 and Balkrishna Ram v. Union of India(2020) 2 SCC 442 : [2020] 2 SCR 581 – distinguished.

Sikander Jehan Begum v. A.P. State Govt. AIR 1962SC 996 : [1962] Suppl. SCR 226; Raja Ram ChandraReddy & Anr. v. Rani Shankaramma & Ors. AIR 1956SC 319; M.P. Wakf Board v. Subhan Shah (Dead) ByLrs. and Others (2006) 10 SCC 696 : [2006] 8 Suppl.SCR 85; Mohd. Habbibuddin Khan v. JagirAdministrator, Government of Andhra Pradesh andOthers (1974) 1 SCC 82; K.S.B. Ali v. State of A.P. andOthers (2018) 11 SCC 277 : [2017] 12 SCR 698;Committee of Management and another v. ViceChancellor (2009) 2 SCC 630 : [2008] 17 SCR 774;Addl. Secy. to the Govt. of India v. Alka Subhash Gadia(Smt) 1992 Supp (1) SCC 496 : [1990] 3 Suppl.SCR 583; K.K. Kochunni v. State of Madras AIR 1959SC 725 : 1959 Suppl. SCR 316; Whirlpool Corporationv. Registrar of Trademarks (1998) 8 SCC 1 : [1998]2 Suppl. SCR 359; Kranti Associates (P) Ltd. v. Masood

Ahmed Khan (2010) 9 SCC 496 : [2010] 10 SCR 1070;Indian National Congress (1) v. Institute of SocialWelfare (2002) 5 SCC 685 : [2002] 3 SCR 1040;Harbans Lal Sahnia v. Indian Oil Corp. (2003) 2 SCC107; Radha Krishan Industries v. State of HimachalPradesh (2021) 6 SCALE 78; Rajasthan Wakf Boardv. Devki Nandan Pathak & Ors. (2017) 14 SCC 561 :[2017] SCR 878; Haryana Wakf Board v. MaheshKumar (2014) 16 SCC 45 : [2013] 12 SCR 596; PunjabWakf Board v. Sham Singh Harike (2019) 4 SCC 698;Telangana State Wakf Board & Anr. v. MohamedMuzafar (2021) 9 SCC 179; Nawab Zain Yar Jung(since deceased) & Ors. v. Director of Endowments &Anr. AIR 1963 SC 985 : [1963] SCR 469; Sayyed Ali& Ors. v. A.P. Wakf Board, Hyderabad & Ors. (1998) 2SCC 642 : [1998] 1 SCR 398; T.N. Wakf Board v.Hathija Ammal (Dead) by LRs & Ors. (2001) 8 SCC528 : [2001] 2 Suppl. SCR 428; Madanuri Sri RamaChandra Murthy v. Syed Jalal (2017) 13 SCC 174 :[2017] 5 SCR 294; Chief Conservator of Forests, Govt.of A.P. v. Collector & Ors. (2003) 3 SCC 472 : [2003]2 SCR 180; K.B. Ramachandra Raje Urs (Dead) byLegal Representatives v. State of Karnataka & Ors.(2016) 3 SCC 422 : [2015] 11 SCR 974; WhirlpoolCorporation v. Registrar of Trade Marks, Mumbai &Ors. (1998) 8 SCC 1 : [1998] 2 Suppl. SCR 359;Commissioner of Income Tax & Ors. v. Chhabil DassAgarwal (2014) 1 SCC 603; Babubhai Muljibhai Patelv. Nandlal Khodidas Barot and Others (1974) 2 SCC706 : [1975] 2 SCR 71; Radha Krishan Industries v.State of H.P. (2021) 6 SCC 771; Rajasthan StateElectricity Board, Jaipur v. Mohan Lal & Ors AIR 1967SC 1857 : [1967] SCR 377; State of U.P. v. NeerajAwasthi & Ors. (2006) 1 SCC 667 : [2005] 5 Suppl.SCR 906; Dwarkadas Marfatia and Sons v. Board ofTrustees of the Port of Bombay (1989) 3 SCC 293: [1989] 2 SCR 751; Shrilekha Vidyarthi (Kumari) v.State of U.P. (1991) 1 SCC 212 : [1990] 1 Suppl. SCR625; M.J. Sivani and others v. State of Karnataka (1995)

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.A. P. STATE WAKF BOARD

6 SCC 289 : [1995] 3 SCR 329; Oil and Natural GasCommission v. Collector of Central Excise (1995) Supp(4) SCC 541; Electronics Corporation of India Limitedv. Union of India (2011) 3 SCC 404 : [2011] 2 SCR971; Province of Bombay v. Khushaldas S. Advani &Ors. AIR 1950 SC 222 : [1950] SCR 621; State ofHimachal Pradesh v. Raja Mahendra Pal & Ors. (1999)4 SCC 43 : [1999] 2 SCR 323; Nawab Zain Yar Jung(since deceased) & Ors. v. Director of Endowments &Anr. AIR 1963 SC 985 : [1963] SCR 469; RajaRameshwar Rao and Another v. Raja Govind Rao AIR1961 SC 1442 : [1962] SCR 618; Sarwanlal & Anr. v.State of Hyderabad (Now Andhra Pradesh) & Ors. AIR1960 SC 862 : [1960] SCR 311 and Khajamian WakfEstates v. State of Madras (1970) 3 SCC 894 : [1971]2 SCR 790 – referred to.

Raj Kishan Pershad and Ors. v. Joint Collector-I andOrs. (2018) 6 ALT 79 (DB); Ahmad-Un-Nissa Begumand Another v. The State through the Chief Ministerand Others AIR 1952 Hyd 163; K.S.B. Ali v. State ofA.P. and Others (2007) SCC Online AP 765; R.Doraswamy Reddy v. The Board of Wakf A.P. Hyderabadrep. by its Secretary 1978 SCC OnLine AP 117; A.P.A.Rasheed v. N.N. Khalid Haji & Anr. 2011 SCC OnLineKer 4185; Parvati Devi v. State of U.P. (2007) 6 ALLLJ 50; Vidya Varuthi Thirtha v. Balusami Ayyar & Ors.AIR 1922 PC 123; Sarwarlal and Others v. State ofHyderabad AIR 1954 Hyd 227;M/s TrinityInfraventures Limited v. The State of Telangana,represented by its Principal Secretary 2018 SCC OnlineHyd 360; Universal Cans & Containers Ltd. v. Unionof India 1991 SCC Online Del 784; Ezhome SunniValiya Juma Masjid v. Kerala State Wakf Board 2019(3) KLT 1064 and Amjad Ali Mirza & Ors. v. Board ofWakfs & Ors. [Decision dated 20.2.2019 of CalcuttaHigh Court in C.O. No. 749 of 2018] – referred to.

Attorney General v. Hughes (1899) 48 WeeklyReporter 150 – referred to.

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.A. P. STATE WAKF BOARD

CIVIL APPELLATE JURISDICTION : Civil Appeal No.10770of 2016.

From the Judgment and Order dated 03.04.2012 of the High Courtof Judicature of Andhra Pradesh at Hyderabad in W. P. No.23578 of2007.

With

Civil Appeal Nos.10738, 10768, 10769, 10773, 10775, 10776-10777,10771, 10772 And 10774 of 2016.

AV. Giri, Huzefa A. Ahmadi, Nakul Dewan, C. S. Vaidyanathan,Salman Khurshid, S. Wasim A. Qadri, Randeep Rai, Basavaprabhu S.Patil, Ranjit Kumar, Anoop Chaudhary, Ashish Dholakia, K.Ramamoorthy, Sr. Advs., P. Venkat Reddy, Prashant Kumar Tyagi, P.Srinivas Reddy, Ms. Ankita Gupta, M/s Venkat Palwai Law Associates,Ejaz Maqbool, Ms. Akriti Chaubey, Saif Zia, Ms. Shahrukh Alam, RohanBSharma, Rohan Andrew Naik, Ms. Smriti Kalra, Abu Akram, Ms. TanyaShree, Ms. Bina Madhavan, Sweena Nair, P. Mohith Rao, S. UdayaKumar Sagar, Lakshmi Raman Singh, Tamim A. Qadri, Saeed Qadri,Ms. Lubna Naaz, Aman Khullar, Ms. Shama Usmani, Abhinav Agnihotri,Dipan Sethi, Ms. Rubina Virmani, Sunil Fernandes, Anirudh Sanganeria,CVikas Mehta, Adith Nair, Apoorv Khator, Bhaskar Nayak, V. Prabhakar,Rajat Sehgal, Ms. Jyoti Parashar, N. J. Ramchandra, Francis Ilango,Deepak Khurana, Ms. Nishtha Wadhawa, Umesh Kumar Khaitan,Varinder Kumar Sharma, Varun Thakur, Ms. Parul Sharma, BikashChandra, Brijesh Pandey, Salman Khan, Yugal Prasad, P. K. Singh, Ms.Shraddha Saran, Shantanu Sharma, Akash Panwal, P. S. Sudheer, BharatDSood, Ms. Shruti Jose, Santanam Swaminadhan, Hirendranath, Ms.Abhilasha Shrawat, Prakruti Golechha, Mrs. Aarthi Rajan, Smt. LaxmiArvind, Arvind Kumar, Pradeep Kumar Mathur, Khushant Wadhwa, M.K. Tiwari, Chiranjeev Johri, Rambabu, N. Eswara Rao, Ms. PrityKumari, M/s M. Rambabu & Co., Mahfooz A. Nazki, Dr. Lalit Bhasin,EMs. Nina Gupta, Ms. Ananya Marwah, Ms. Ruchika Joshi, Mudit Sharma,M. A. Chinnasamy, C. Rubavathi, M. Veeraragavan, P. Rajaram, KulwantSingh Narwal, V. Senthil Kumar, Ch. Leela Sarveswar, Venkatasamy,Dheeraj Nair, Ms. Avni Sharma, Manoj C. Mishra, M. Shoeb Alam,Guntur Prabhakar, Kunal Verma, Ms. Yugandhara Pawar Jha, AshwinKumar Nair, Satya Mitra, G. N. Reddy, T. V. Ratnam, P. Vinay Kumar,FSumanth Nookala, Advs. for the appearing parties.

The Judgment of the Court was delivered by

HEMANT GUPTA, J.

CIVIL APPEAL NOS. 10770 OF 2016, 10738 OF 2016,G10768 OF 2016, 10769 OF 2016, 10773 OF 2016, 10775 OF 2016AND 10776-10777 OF 2016

1. The present appeals are directed against an order passed bythe High Court of Judicature at Andhra Pradesh on 3.4.2012[1] where by

the writ petitions challenging the Errata Notification dated 13.3.2006,published in the Official Gazette of the State of Andhra Pradesh on6.4.2006 on behalf of Andhra Pradesh Wakf Board[2], were dismissed.The said notification reads thus:

“THE ANDHRA PRADESH GAZETTE

PUBLISHED BY AUTHORITY

HYDERABAD, THURSDAY, APRIL 6, 2006

Part-I Notifications by Government Heads of Departments

And other Officers

CONTENTS

xxxxxx

ERRATA NOTIFICATION OF DARGAH NZT HUSSAINSHAH VALI, MANIKONDA (V), RAJENDARANAGAR (M),R.R. DISTRICT

F. No. M1/69/PROT/RR/04 – In the Notification published in A.P.Gazette No. 6-A, dated 9-2-1989 at page No. 262 under Sl. No.3057, 3058 and 3059 the service Inam lands attached to the subjectinstitution were not notified. Hence the following addendum isnotified.

ADDENDUM

For Column No.Read Column No.10, 11 and 1210, 11 and 12(10) Sy. No. – (10) Sy. No.59, 65, 71, 102, 185, 186,F187, 188(11) Extent Dry ---189, 190, 191, 192, 193, 194,195G(12) Extent Wet -196, 197, 198, 199, 200, 201,202, 203, 204, 205, 206, 207,208, 209, 210, 211, 212, 213,

2 For Short “Wakf Board”

[2022] 19 S.C.R.

214, 215, 216, 217, 218, 219,220, 221, 222, 223, 224, 225,226, 227, 228, 229, 231, 232,233, 234, 235, 236, 237, 240,241, 242, 244, 246, 247, 249,250, 251, 252, 254, 256, 256,257, 248, 258, 259, 260, 263,

264, 265 and 266 of Manikonda(V) Rajendranagar (M) RRDistrict attached to D. HazrathHussain Shah Vali (11) TotalExtent Ac:- 1654.32 Gts

Hyderabad(Sd/-)D13-3-2006

Chief Executive Officer”

2. The above Errata notification was challenged by the then Stateof Andhra Pradesh, now State of Telangana[3] and the Andhra Pradesh(now Telangana) Infrastructure Development Corporation[4 ]by filing WritPetition No. 23578 of 2007 before the High Court. Civil Appeal No.E10770 of 2016 herein is preferred by the State against the order passedby the High Court in the said writ petition whereas the Corporation astransferee from the State of Andhra Pradesh in 1995 has filed CivilAppeal No. 10769 of 2016.

3. Civil Appeal Nos. 10776-10777 of 2016 have been preferredFby university to whom the State had transferred 200 acres of landsituated in the village Manikonda on 18.3.1998 for the purpose of settingup of University. Civil Appeal No. 10773 of 2016 is filed on behalf oftransferee M/s Emaar Hills Township P. Ltd inter-alia on the groundthat on 6.11.2002, the appellant and the Corporation had signed aGMemorandum of Understanding setting out the principal terms andstructure for the development of the Integrated Project situated atManikonda village. The possession of land measuring 535 acres washanded over to such appellant on 29.11.2005 on which the appellant hasdeveloped township. Writ Petition No. 4515 of 2008 was filed by Lanco

H3 For short, “the State”

Hills Technology Park Pvt. Ltd and Civil Appeal No. 10768 of 2016arises out of the said Writ Petition. Civil Appeal No. 10768 of 2016 andCivil Appeal No. 10775 of 2016 have beenfiled on behalf of transfereesof the Corporation. Civil Appeal No. 10738 of 2016 and Civil AppealNos. 10776-10777 of 2016 are directed against an order passed by theHigh Court in exercise of its revisional jurisdiction against an interimorder passed by the Andhra Pradesh Wakf Tribunal[5].

4. The High Court vide the order under challenge also decidedWrit Petition Nos. 17192, 20372 and 20614 of 2007 filed in public interestchallenging the alienations made by the State or the Corporation. TheHigh Court gave liberty to these writ petitioners to approach the WakfTribunal wherein suit filed by the Dargah Hazrath Hussain Shah[6 ]ispending consideration. The Dargah had challenged the alienations madeby the Corporation before the Wakf Tribunal. The present appeals arethus filed by the State, the Corporation and the assignees from the Stateand/or Corporation.

A. Background of Hyderabad State and its Administrationimmediately prior to accession and soon thereafter.

5. At the time of Independence, the British gave rulers of thePrincely States an option to join either of the two countries, India orPakistan or to remain independent. His Exalted Highness “The Nizamof Hyderabad Mir Osman Ali Khan”[7] declared his unwillingness toparticipate in the Constituent Assembly of both the countries on 11.6.1947.Thereafter, “Operation Polo” was initiated by the Indian Army whichcommenced on 13.9.1948. The Sovereign ultimately surrendered on17.9.1948. The State of Hyderabad thereafter became part of the Unionof India. Major General J.N. Choudary, the General Officer Commandingin Chief Southern Army was appointed to be the Military Governor forthe Hyderabad State. The Sovereign issued Farman[8] on 19.9.1948investing the Military Governor with the authority to administer the Statewhich was published in the Extra-Ordinary Gazette on Aban 20, 1357Fasli, i.e., 20.9.1948. On 7.8.1949, by another Farman, the Sovereignclarified that all authorities for the administration of the State would now

4 For Short, “the Corporation”

5 For Short, the “Wakf Tribunal”

6 For Short, the “Dargah”

7 For Short, the ‘Sovereign’

8 Also Firman - the “Royal order”

Avest with the Military Governor and that said authority included theauthority to make Regulations as well. Such Farman reads thus:

“19.9.1948

Whereas the General Officer Commanding in Chief SouthernArmy has appointed Major General J.N. Choudary, O.B.E., to beBthe Military Governor for the Hyderabad State and whereas allauthority for the administration of the State now vests in him, Ihereby enjoin all the subjects of the State to carry out such ordersas he may deem fit to issue from time to time. I appeal to allofficers of the State administration and subjects of the State toCrender faithful and unflinching obedience to the Military Governorand conduct themselves in manner calculated to bring about thespeedy restoration of law and order in the State.”

“7.8.1949

With reference to my farman dated 19-9-1948, in which I referredDto the fact that all authority for the administration of the Statenow vests in the Military Governor, I hereby declare that the saidauthority includes and has always included authority to makeregulations.”

6. Subsequently, on 1.12.1949, another Farman was issued byEthe Sovereign appointing Mr. M.K. Vellodi, I.C.S. to be his Chief Ministerand all the powers of administration which were vested in the MilitaryGovernor before the said date were exercisable by the Chief Minister.The said Farman reads as under:“1.12.1949FWhereas the General Officer Commanding in Chief SouthernArmy has as from 1st December, 1949, terminated the appointmentof Major General Choudary, O.B.E., to be the Military Governor,for the Hyderabad State;

And whereas it is necessary to make other arrangements for theGadministration of the State as from the said date;

Now, therefore, I hereby appoint as from the said date Mr M.K.Vellodi, C.I.E., I.C.S., to be my Chief Minister and … I furtherdirect that all the powers of administration, vested in the MilitaryGovernor before the said date are exercisable by the ChiefHMinister.”

7. The Military Governor in exercise of authority vested on himby the Sovereign introduced the Hyderabad (Abolition of Jagirs)Regulation, 1358 Fasli[9 ]to abolish jagirs and to provide commutationand for payment of interim allowance to Jagirdars and Hissedars. Thestatute titled as Regulations was published in the Extra-Ordinary Gazetteon 15[th ]Mehir 1358 Fasli, i.e., 15.8.1949 AD. Later, the Chief Ministeras Sovereign introduced the Andhra Pradesh (Telangana Area) Jagirs(Commutation) Regulation, 1359 Fasli[10 ]i.e. 25.1.1950 to determine theterms of commutation of jagirs after the termination of interim allowancepayable under the Abolition Regulation. The President certified twoRegulations, namely, Abolition Regulation and the CommutationRegulation under Article 31(6) of the Constitution, as then existed, bya notification published in the Gazette of Union of India. On 18.6.1951,Articles 31-A and 31-B and Schedule IX were incorporated and theAbolition Regulation and the Commutation Regulation were includedin the Schedule IX. Thus, the above two Regulations shall not bedeemed to be void or ever to have become void on the ground that theRegulations were inconsistent with or took away or abridged any ofthe rights conferred by any of the provisions of Part III of theConstitution.

8. The Hyderabad State had its last Nizam, His Exalted HighnessMir Osman Ali Khan as Rajpramukh from 26 January 1950 to 31 October1956. The General Elections were held in Hyderabad State on 27.3.1952after the adoption of the Constitution of India on 26.1.1950. It wasthereafter that an elected Chief Minister took over on 6.3.1952 fromMr. M.K. Vellodi. The elected Chief Minister held the office till thecreation of the State of Andhra Pradesh on 1.11.1956 by the StatesReorganisation Act, 1956, when the Telugu-speaking region of the Stateof Hyderabad was merged with Andhra State, Marathi speaking regionof Hyderabad State was merged with Bombay State and Kannadaspeaking region with the Mysore State.

9. The validity of the Abolition Regulation and the CommutationRegulation also came up for consideration before Constitution Benchof this Court in judgment reported as Sarwanlal v. State of Hyderabad(Now Andhra Pradesh) & Ors.[11], wherein this Court held as under:

9 For Short, the ‘Abolition Regulation’

10 For Short, the ‘Commutation Regulation’

11 AIR 1960 SC 862

A“11. Though by the delegation of authority, the Military Governorwas invested with all authority of His Exalted Highness the Nizamin the matter of administration of the State in all its departments,the sovereignty of His Exalted Highness the Nizam was, by thisact of delegation, undoubtedly not extinguished. It was open tohim, notwithstanding the delegation, to issue orders or regulationsBcontrary to those which were issued by the Military Governor,and also to withdraw the authority of the Military Governor. Thereis, however, no evidence on the record to show that after 19-9-1948, and before the Abolition Regulation was promulgated, theauthority of the Military Governor was withdrawn or that HisCExalted Highness the Nizam had issued any order or regulationinconsistent with the Abolition Regulation. The authority of theMilitary Governor was withdrawn in December 1949, and theChief Minister was invested with the same authority ofadministration including expressly the power of legislation, and itwas in exercise of that authority that the Chief Minister issuedDthe Commutation Regulation.12. The authority of His Exalted Highness the Nizam as thesovereign ruler to resume the jagirs and to extinguish the interestsof the jagirdars being by delegation vested in the Military Governor,the legality of the action of the latter was not open to challenge onany test of legislative competence. Assuming that no opportunityhad arisen for exercise of the sovereign authority in the matter ofresumption of jagirs or extinction of the jagirdars’ interests beforethe promulgation of the Abolition Regulation, an inference cannottherefrom arise that His Exalted Highness the Nizam hadirrevocably placed restriction on his sovereignty, or that thedelegation to the Military Governor of the sovereign authority wassubject to an implied restriction that the interests of the jagirdarsin the jagirs could not in exercise of the authority be extinguished.

13. The authority of the Military Governor, being unrestricted, solong as it enured, his action in issuing the Abolition Regulationcould not be challenged on the plea that it was colourable exerciseof legislative authority. The doctrine of invalidity of legislativeprovisions enacted in colourable exercise of authority applies tolegislatures whose powers are subject to constitutional restrictions.When such legislative body seeks, under the guise or pretence

of complying with the restrictions, in enacting statute, to evadeor elude them, it is but fraud on the Constitution, and the statuteis liable to be declared invalid on the ground that the enactment isin colourable exercise of authority, the statute being in truth beyondthe competence of the body. But statute enacted by legislativeauthority whose powers are not fettered by any constitutional orother limitations, cannot be declared invalid as enacted in colourableexercise of its powers.

14. The authority of the Chief Minister under the Farman datedDecember 1, 1949, in its amplitude, was as extensive as that ofHis Exalted Highness the Nizam and the Commutation Regulationwas not liable to be challenged on the ground of want of legislativecompetence or colourable exercise of legislative authority, thepower exercised by him being the legislative power as the delegateof the Sovereign.”

10. This Court also held that the two Regulations are exemptedfrom any challenge on the ground that they are inconsistent with orviolative of Part III of the Constitution. Thus, the Abolition Regulationand the Commutation Regulation are statutory, having been issued underthe Farman of the Sovereign before the Constitution came into force on26.1.1950.

11. Constitution Bench of this Court in judgment reported asSikander Jehan Begum v. A.P. State Govt.[12 ]held that Military Governorhad all the authority for administration of the State and that such authoritydelegated to him included and shall always be deemed to have includedthe authority to make Regulations. The Military Governor exercised hisdelegated powers of legislation as in-charge of the administration ofHyderabad State on behalf of the Sovereign. This Court held as under:-

“6. It appears that after the Military Governor was put in chargeof the administration of the State of Hyderabad, the Nizam issueda firman on 19-9-1948, delegating to the Military Governor all theauthority for the administration of the State. Subsequently, byanother firman he made it clear that the authority delegated to theMilitary Governor included and shall always be deemed to haveincluded authority to make Regulations. This latter firman was

issued on 7-8-1949. In due course, the Chief Minister took theplace of the Military Governor and the Nizam issued firman on1-12-1949, whereby all the powers of administration delegated byhim to the Military Governor were as from the date of thenotification terminated and the said powers were delegated to theChief Minister. That is how the Chief Minister was vested withall the powers of administration which the Nizam possessed.

7. When the Military Governor was in charge of the administrationof Hyderabad State, he exercised his delegated powers oflegislation and promulgated several Regulations. One of these wasthe Hyderabad (Abolition of Jagirs) Regulation, 1358-F. ThisCRegulation came into force on 15-8-1949. Broadly stated, the effectof this Regulation was that all jagir lands were incorporated intoState lands as from the appointed day and their administrationstood transferred to the jagir Administrator who was to beappointed by the Government. The Regulation made necessaryDprovisions for making cash payments out of the net income of thejagirs to the Jagirdar or Hissedars or maintenance holders. Thisarrangement was intended to serve as an interim arrangementpending the final disposal of the question about the commutationto be paid for the Jagirs. This Regulation was followed fewmonths later by the Hyderabad jagirs (Commutation) Regulation,E1359-F which came into force on 25-1-1950. By this Regulation,provision was made for the payment of compensation by way ofthe commuted value of the Jagir which had to be determined bythe Jagir Administrator in accordance with the relevant provisionsof the Regulation.”F

12. Thus, we reiterate that the Military Governor and subsequentlythe Chief Minister had all the legislative and executive powers as theSovereign had prior to his surrender on 19.9.1948, till the Constitutioncame into force on 26.1.1950.

B. Background of Jagirs, Jagirdarsand the Jagir AbolitionGRegulation.

13. The Hyderabad State was facing heat by insurgents on onehand and forces loyal to Sovereign on the other hand, even before‘Operation Polo’ was conducted. The insurgency began in 1944-1945 inNalgonda and Warangal districts known as the Telangana area, in theHeast of Hyderabad State. The Sovereign appointed Royal Commission

under the chairmanship of Sir Albion Rajkumar Banerji sometime in 1945or 1946. One of the terms of reference was “the rights and obligationsof Jagirdars vis-à-vis the State and the Ruler’s subjects residing withintheir jagirs”. In Chapter IV, the Commission dealt with the classificationof Jagirs and their nature. The Jagirs were of four kinds according to thestatus of the holders and their powers of administration such as Paigahs;Ilaqas of the Premier Nobles; Samasthans; and Other Jagirs. The firstthree category of jagirs are not relevant for the purpose of presentappeals.

1. In order to address the terms of reference, the RoyalCommission suggested codification of the Atiyat[13] Law to decide alldisputes relating to succession in case of deceased Jagirdar by specialcourts called Atiyat Courts. It was thereafter, the Abolition andCommutation Regulations were enacted by the Military Governor andChief Minister respectively under the authority of the Sovereign.

2. The other jagirs as mentioned in the Royal Commission wereof two kinds such as the exempted (Mustasna) and non-exempted Jagirs(Ghair Mustasna). Mustasna jagir was exempted from the Diwanijurisdiction. The power to declare jagir as an exempted one or to takeaway the privileges from an exempted Jagir rested with the Sovereign.The Mashruti (conditional) and Ghair Mashruti (un-conditional) Inamswere regarded as traditional jagirs. The conditional grants were usuallyconditioned by some service “Khidmat” or other, whereas theunconditional grants were those which were conferred as personal honorsin recognition of merit or past services rendered by the grantee or hisfamily.

3. The jagirs according to their nature fall in eight categories. Theone that is relevant for present appeal is Madad Mash (personal grantsconditioned by maintenance), intended for the maintenance of the holderand his family. The jagirs were either given in perpetuity or for the lifetimeof the grantee. After the death of each holder, an inquiry was conductedto determine the next successor. All disputes relating to succession of adeceased jagirdar were decided by Atiyat Courts. Gashti (Circular)No.19 of 1332 Fasli (19.3.1923) constituted Directorate of Atiyat (crowngrants) to enquire and speedily dispose of disputes according to theprocedure in the courts of law under the revenue department. But revenue

Adepartment continued to discharge itsrespective duties for the rest ofthe work. The judicial matters which raised serious issues between theparties involving the legal rights were to be taken out of the hands of theadministrative machinery and had to be dealt by the Directorate of Atiyatunder judicial procedure. Subsequently Circular No. 10 of 1338 (1928)was issued which was repealed by Section 15 of the Atiyat EnquiriesBAct.[14]

14. One of us, Justice V. Ramasubramanian as Judge of theAndhra Pradesh High Court traced the history of questions relating toland disputes in judgment Raj Kishan Pershad and Ors. v. JointCollector-I and Ors.[15]. The High Courtnoted that the AbolitionCRegulations were enacted in the year 1949, but they did not providesolace to the peasants. Therefore, an Agrarian Reforms Committee wasset up in 1949 to examine the problem and to suggest remedies. It washeld as under:

“93. The lands in the erstwhile Hyderabad State (part of whichDhas now become Telangana), were broadly divided into two groupsnamely (1) lands under the direct management of the Government,the revenue from which went to the Government treasury (theselands were called Diwani or Khalisa lands); and (2) the lands, therevenue of which was wholly or partially assigned for some specialEpurpose.

94. The lands of the second category were further sub-dividedinto (i) Sarf-e-Khas lands, which formed part of the Nizam’sproperty and which merged in Diwani in February, 1949 and (ii)lands that were the subject of State grants and the revenue fromFwhich has been assigned wholly or partially as Jagir or Inam infavour of some persons.

101. The Agrarian Reforms committee made its recommendations,which were accepted by the Government headed by Mr. M.K.Vellodi and an Act known as Hyderabad Tenancy and AgriculturalGLands Act, 1950 was passed. This Act was described by someeconomists and policymakers as having taken the lead in LandReforms in independent India…………….”

14 Source- AIR 1956 SC 319H15 (2018) 6 ALT 79 (DB)

15. The Abolition Regulation came into force on 15.8.1949 whenit was published in the Official Gazette. Section 4 abolished Jagirdars oncommencement of the Act whereas the transfer of jagir to Governmentfor administration of jagirs was contemplated by Section 5 of the Act.The jagirdar was to handover the management of the jagirs to the JagirAdministrator under sub-section (2) of Section 5. In terms of Section 6of the Act, the jagir shall be included in the Diwani from the appointedday and all powers, rights and liabilities of the jagirdar in relation to thejagirs would cease to be exercisable and enforceable by or against theJagirdar and could only be done by/against the Jagir Administrator. Therelevant provisions of the statuteas part of agrarian reforms read thus:

“THE A.P. (T.A.) (ABOLITION OF JAGIRS)

REGULATION, 1358 F.

No. LXIX of 1358

PRELIMINARY

xxxxxxxxx

(f) Jagir” includes Paigah, Samasthan part of jagir, villageMuktham village Agrahar, Umli an1d Mukasa whether grantedby Ruler or Jagirdar, and, as respects the period commencingon the date appointed for Jagir under Section 5, means the estatetherefore constituting Jagir.

(g) “Jagir Administrator” means the Jagir Administrator appointedunder sub-section (1) of Section 3 and, subject to the rules underthis Regulation referred to in sub-section (2) of Section 3. Allreferences to the Jagir Administrator shall be read as including areference to an Assistant Jagir Administrator;

xxxxxx

3. Appointment of Jagir Administrator :— (1) The[Government] shall appoint Jagir Administrator and as manyAssistant Jagir Administrators as he considers necessary for thedue administration of this Regulation.

xxxxxx

4. Appointment of Jagirdars to cease: - After the Commencementof this Regulation, no person shall be appointed to be, or beH

recognised as, Jagirdar whether in succession to deceasedJagirdar or otherwise.

PART – II

TRANSFER OF ADMINISTRATION AND THECONSEQUENCES THEREOF

5. Appointment of dates for transfer of Administration: - (1) Assoon as may be after the commencement of this Regulation; theGovernment shall appoint date for the transfer to the Governmentof the administration of jagirs and may appoint different dates fordifferent jagirs.

(2) On the date so appointed any jagir (hereinafter referred to asthe appointed day) the Jagirdar shall make over the managementof the jagir to the jagir Administrator and shall furnish him with anaccount of the revenue received and expenditure incurred onaccount of the jagir in the current, or, if Jagir Administrator sorequires, in the immediately proceeding year of account, in so faras such revenue and expenditure are attributable to that year.

xxxxxx

6. Powers, rights and liabilities as from the appointed day: - Asfrom appointed day-

(1) The jagir shall be included in the Diwani and unless and untilincluded in district constituted under [the Andhra PradeshTelangana Area Land Revenue Act, 1317 F] shall be administeredby the Jagir Administrator;

PART – IV

MISCELLANEOUS

xxx

16. Special provision for Jagirs granted to temples, etc: - Theprovisions of this Regulation shall apply so far as may be to anyjagir granted to temple or mosque or to any institution establisheda religious or public purpose.

Provided that in the case of such jagir-

(a) the percentage of the gross revenue to be paid toGovernment shall, notwithstanding anything contained in

Section 8, be such percentage not exceeding ten as theGovernment may by notification in the Official gazette directeither generally or in respect of particular jagir or particularclass of jagirs:

(b) the distribution or application of the net income shall beeffected in accordance with the rules made under thisRegulation which shall be so framed as to respect so far aspossible the wishes of the grantor and to be in consonancewith custom and usage.”

16. The Commutation Regulation came into force on 25.1.1950providing commutation of the amount of maintenance after terminationof the interim allowance payable in terms of Section 14 of the AbolitionRegulation. The relevant extract from the said statute reads thus: -

“THE A.P. (T.A.) JAGIRS (COMMUTATION)REGULATION, 1359 F.

NO. XXV OF 1359 F.

xxxxxx

10. Special Provision for jagirs granted for the support of serviceof Religious and Charitable institutions.

(1) The provision of this Regulation shall apply so far as may be,to any jagir granted-

(a) in the name or for the support of any religious or charitableinstitution; or

(b) to any person for the purposes of any service or, charity,such service or charity being of public nature connected withany religious or charitable institution.

(2) The Government shall pay to the institution every yearcommencing from the 1[st] April 1950 for the service of theinstitution, so long as it exists-

(i) in the case mentioned in clause (a) of sub-section (1) anamount equivalent to 90 percent of the gross basic sum referredto in Section 4; and

(ii) in the case mentioned in clause (b) of sub-section (1) anamount equivalent to 50 percent of the gross basic sum referredto in Section 4.

The person referred to in clause (b) of sub-section (1) shallthereupon stand release of the liability to render any service orcharity, but shall be entitled to receive commutation sum as maybe determined under this Regulation.

(3) The application of the amounts paid to religious or charitableBinstitution under sub-section (2) shall be effected in such manneras may be prescribed.

Explanation :— In this section-

(a) “religious institution” means any religious establishment suchas temple, shrine, mosque, darga or the like with specific locationCand known address which is dedicated to, or used as of right by,the general public or any community or section thereof as placeof public religious worship;

(b) “charitable institution” means by charitable establishments,with specific location and known address which is dedicated to,Dor for the benefit of, or used as of right by, the general public orany community, or section thereof, for any pious, charitable orphilanthropic purpose.

17. Thus, by the Abolition Regulation, all jagir lands wereincorporated into the State lands and the administration of all the jagirsEwas to be transferred to Jagir Administrator who had to be appointedby the Government (as per Sections 5 and 6). The statute provided forinterim maintenance allowance until commutation for jagirs wasdetermined (Section 14). From that date, the Jagirdars or Hissedars ormaintenance holders were only to get cash payments out of the netFannual income of the jagirs worked out in accordance with the provisionsof that Regulation (Section 6). It was specifically provided that if aJagirdar or Hissedar dies, his share in the net income shall devolve inaccordance with his personal law (Section 6(8)), abrogating thereby theprevious law that the succession to the jagir depended entirely on therecognition or regrant thereof by the Nizam. Such share however wasGnot alienable without previous sanction of Government (Section 6(7)).Thus, in effect, the original jagir tenure as such was abolished and underthese Regulations, hereditary but inalienable personal right to receivea portion of the net income thereof by way of interim maintenance wassubstituted.

C. The Andhra Pradesh (Telangana Area) Atiyat EnquiriesAct, 1952

18. The Hyderabad Atiyat Enquiries Act, 1952[16] was published inGazette No. 21 on 14[th] March 1952. Later, some amendments werecarried out by the Hyderabad Atiyat Enquiries (Amendment) Act, 1956(Act No. XXVIII of 1956). Such amending Act was published on 5[th]September 1956. The title of the Act now stands as The Andhra Pradesh(Telangana Area) Atiyat Enquiries Act, 1952. The relevant provisionsfor the purpose of the present appeals read thus:

“(1)In this Act unless there is anything repugnant in the subjector context-

(a)“Atiyat Court” means Court or authority competent tomake Atiyat enquiries and enquiries as to claims tosuccession to and any right, title or interest in Atiyat grantsand matters ancillary thereto;

*[(b) “Atiyat grants” mean-

(i)in the case of jagirs abolished under [the Telangana(Abolition of Jagirs) Regulation, 1358F.] the commutationsums payable in respect thereof under [the Telangana Jagirs(Commutation) Regulation, 1359 F.];

(ii)inams to which [the Telangana Abolition of Inams Act, 1954]is not applicable;

(iii)in the case of inams abolished under [the TelanganaAbolition of Inams Act, 1954] the compensation payableunder that Act;]

xxxxxxxxx

(c)“Muntakhabs and Vasiqas” means documents issued bycompetent authorities as result of Inam or successionenquiries held under the Dastoor-ul-Amal Inams or otherGovernment orders on the subject and issued by way ofcontinuance or confirmation of Atiyat grants;

(d)“Holding an Atiyar grant” means the enjoyment of the Atiyatgrant on the basis of Muntakhab, Vasiqa or any order ofa competent authority;

16 For Short, the “Enquiries Act”

AGeneral Provisions as to Atiyat Grants.

2.All Atiyat grants shall, subject to provision of [the Telangana(Abolition of Jagirs) Regulation, 1358F.], the HyderabadAbolition of Cash Grants Act, 1952 (XXXIII of 1952) and[the Telangana Abolition of Inams Act, 1954], continue tobe held by the holders thereof subject to the conditions laiddown in the Muntakhabs or Vasiqas, if any, relating theretoand to the provisions of this Act.

3.*[Continuance of Atiyat grants:- All Atiyat grants shall,subject to the provisions of the Andhra Pradesh (TelanganaCArea) (Abolition of Jagirs) Regulation, 1358 F., theHyderabad Abolition of Cash Grants Act, 1952 (XXXIII of1952) and the Andhra Pradesh (Telangana Area) Abolitionof Inams Act, 1954 continue to be held by the holders thereofsubject to the conditions laid down in the Muntakhabs orVasiqas, if any, relating there to and to the provisions of thisDAct.

3-A. (1) In the case of Atiyat grants specified in sub-clause (i)of clause (b) of sub-section (1) of section 2, Atiyat enquiriesand enquiries as to any right, title or interest therein shall,notwithstanding anything contained in [the Telangana(Abolition of Jagirs) Regulation, 1358 F.], be held in AtiyatCourts in accordance with the provisions of this Act, and inthe course of such Inquiries, Atiyat Courts shall also becompetent to enquire into claims to succession arising inrespect of such grants:

Provided that claims to succession arising after thecompletion of Atiyat Enquiry of any such grant shall not beentertained in any Atiyat Court and all such claims shall befiled in and decided by the competent Civil Court.

(2) In the case of Atiyat grants specified in sub-clauses (ii)to (vi) of clause (b) of sub-section (1) of section 2, all Atiyatenquiries, enquiries as to claims to succession to, or anyright, title or interest therein and matters ancillary theretoshall be held in Atiyat Courts in accordance with theprovisions of this Act.]

xxx

Constitution of Atiyat Courts, their jurisdiction andprocedure.

12.*[(1)] In so far as questions of succession, legitimacy,divorce or other questions of personal law are concerned,the final decision of Civil Court shall be given effect to bythe Atiyat Court established under this Act on the decisionbeing brought to its notice by the party concerned orotherwise irrespective of whether the decision of the AtiyatCourt was given before or after the decision of the CivilCourt.

[(2) If in the course of any Enquiry as to claims tosuccession, any dispute arises involving questions ofsuccession, legitimacy, divorce or other questions of personallaw, the Atiyat Court shall direct the parties to get the disputedecided in the competent Civil Court. On the production ofthe final decision of the Civil Court, the Atiyat Court shallgive effect to such decision.]

xxxxxx

*[16. The provisions of this Act, shall cease to be applicable-

(a) to an Atiyat grant specified in sub-clause (i) of clause(b) of sub-section (1) of section 2 when the commutationsum has ceased to be payable;

(b) to an Atiyat grant specified in sub-clause (iii) ofclause (b) of sub-section (1) of section 2, when thecompensation has ceased to be payable;

(c) to an Atiyat grant specified in sub-clause (v) of clause(b) of sub-section (1) of section 2, when such grant hasceased to continue;

(d) to an Atiyat grant specified in sub-clause (vi) ofclause (b) of sub-section (1) of section (2), when thecompensation has ceased to be payable].

*Substituted by Act No. XXVIII of 1956"

22. This Court in Raja Ram Chandra Reddy & Anr. v. RaniShankaramma & Ors.[17], was considering the question of title to the

Agrant or recognition by the Sovereign according to Atiyat Law ofHyderabad. It was held that the original jagir tenure was abolished andfrom the time of commencement of the Abolition Regulation, the Jagirdarsor Hissedars or maintenance holders were only to get cash paymentsout of the net annual income of the jagir worked out in accordance withthe provisions of Section 6. The share of Jagirdar or Hissedar after hisBdeath, shall devolve in accordance with his personal law, abrogatingthereby the previous law that the succession to the jagir right dependedentirely on the recognition or regrant by the Nizam. The question examinedtherein was as to whether the order of Chief Minister was protected bysub-clause (2) of Section 13 of the Enquiries Act having been passed byCthe Sovereign under his authority. This Court held as under:

“5. The police action in Hyderabad took place in September, 1948.After its termination series of legislative measures were enactedby the Military Governor by virtue of power conferred on him bya Firman of the Nizam dated 20-9-1948.

One of these measures is the Hyderabad (Abolition ofJagirs) Regulation, 1358F. (Regulation No. LXXIX of 1358 F.)which came into force on 15-8-1949. By this Regulation, broadlyspeaking, all Jagir lands were incorporated into State lands asfrom the appointed day and the administration of all the JagirsEwas to stand transferred to Jagir Administrator to be appointedby the Government (Sections 5 and 6).

From that date the Jagirdars or Hissedars or maintenanceholders were only to get cash payments out of the net annualincome of the Jagirs worked out in accordance with the provisionsFof that Regulation (S. 6). This was to be by way of interimmaintenance allowance until commutation for Jagirs is determined(S. 14).

It was specifically provided that if Jagirdar or Hissedardies, his share in the net income shall devolve in accordance withhis personal law (S. 6(8)) abrogating thereby the previous lawthat the succession to the Jagir right dependent entirely on therecognition or regrant thereof by the Nizam. Such share howeverwas not alienable without previous sanction of Government (S.6(7)).

It was also provided after the commencement of theARegulation no person shall be appointed to be, or be recognisedas, Jagirdar whether in succession to deceased Jagirdar orotherwise (S. 4). Thus in effect the original Jagir tenure assuch was abolished and under this Regulation hereditarybut inalienable personal right to receive portion of the netBincome thereof by way of interim maintenance wassubstituted.……”

D. The Andhra Pradesh (Telangana Area) Abolition of InamsAct, 1955.

23. The Andhra Pradesh (Telangana Area) Abolition of InamsAct, 1955[18] was enacted for abolition of inam lands gifted or given byway of grant by the Sovereign or by jagirdar etc. Some of the relevantprovisions from the Inams Abolition Act read thus:-

“The Andhra Pradesh (Telangana Area) Abolition of Inams

Act, 1955

(Act No. VIII of 1955)

CHAPTER I

Preliminary

xxxxxxxxx

(c) “inam” means land held under gift or grant made by theNizam or by any Jagirdar, holder of Samsthan or other competentgrantor and continued or confirmed by virtue of muntakhab orother title deed, with or without the condition of service and coupledwith the remission of the whole or part of the land revenue thereonand entered as such in the village records and includes-

(i) arazimakhta, araziagrahar and seriinam; and

(ii) lands held as inam by virtue of long possession andentered as inam in the village records:

Provided that in respect of former Jagir areas, the expressioninam shall not include such lands as have not been recognised asinams by the Government after the abolition of the Jagirs.

18 For Short “the InamsAbolition Act”

(d) “inamdar” means person holding an inam or share therein,either for his own benefit or in trust and includes the successor ininterest of an inamdar, and

(i) where an inamdar is minor or of unsound mind or an idiot,his lawful guardian;

(ii) where an inamdar is Joint Hindu family, such Joint Hindufamily;

CHAPTER II

Abolition and vesting of inams and

the consequences thereof

Section 3. Abolition and vesting of inams and theconsequences thereof :—(1) Notwithstanding anything to thecontrary contained in any usage, settlement, contract, grant, sanad,order or other instrument, Act, regulation, rules or order havingthe force of law and notwithstanding any judgment, decree ororder of Civil, Revenue or Atiyat Court, and with effect fromthe date of vesting, all inams* [to which this Act is made applicableunder sub-section (2) of section 1 of this Act] shall be deemed tohave been abolished and shall vest in the State.

*[Omitted by Amendment Act No. 29 of 1985]

(2) Save as expressly provided by or under the provisions of thisAct and with effect from the date of vesting the followingconsequences shall ensue, namely:

(a) the provisions of the Land Revenue Act, 1317 Faslirelating to inams, and the provisions of the Andhra Pradesh(Telangana Area) Atiyat Inquiries Act, 1952, Act X of 1952and other enactments, rules regulations and circulars in forcein respect of Atiyat grants shall, to the extent, they arerepugnant to the provisions of this Act, not apply and theprovisions of the Land Revenue Act, 1317 Fasli, relating tounalienated lands for purposes of land revenue, shall applyto the said inams;

[Amended by AP Act IX of 1961]

xxxxxx

(3) Nothing contained in sub-sections (1) and (2) shall operateas bar to the recovery by the inamdar of any sum whichbecomes due to him before the date of vesting by virtue of hisrights as inamdar and any such sum shall be recoverable by himby any process of law, which, but for this Act, would be availableto him.

CHAPTER III

Determination, Apportionment and Payment ofCompensation

Section 12. Determination of compensation payable to theinamdar :— The compensation payable to the inamdar for theinams abolished under Section 3 shall be the aggregate of thesums specified below:—

(i) in respect of inam lands registered in the name of the inamdarand kabiz-e-kadim under Sections 4 and 5, sum equal to twentytimes the difference between land revenue and judi or quit-rent;

(ii) in respect of income accruing to the inamdar from thelands registered in the names of his permanent tenant,protected tenant and non-protected tenant sum equal tosixty per cent of the premium charged, as the case may be,under Sections 6, 7 and 8.

xxxxxx

Section 15. Payment of compensation:— (1) Thecompensation shall be due as from the date of vesting and shallcarry interest at the rate of two and three-fourths per cent perannum from the date of vesting to the date of payment.

(2) The compensation payable under this Act may, in accordancewith rules made in this behalf, be paid in one or more of thefollowing modes, namely:-

(i) in cash in full or in annual instalments not exceeding ten;

(ii) in bonds either negotiable or not negotiable carrying interestat the rate specified in sub-section (1) and of guaranteedface value maturing within specified period not exceedingten years.

AE. Historical background of Wakf in the context of State ofHyderabad.

24. Justice S.I. Jafri in his book “Waqf Laws in India” publishedin 2015 has explained that Waqf is an unconditional and permanentdedication of property with implied detention in the ownership of God inBsuch manner that the property of the owner may be extinguished andits profit may revert to or be applied for the benefit of mankind, exceptfor purposes prohibited by Islam. The following are some of thecharacteristics of Wakf:

“4. Essential requisites of waqf. – Under the Muslim law awaqf means dedication by person embracing the Muslim faithof any property for any purpose recognised by the Muslim law asreligious, pious or charitable. The dedication must be permanentand by the owner of the property who by reason of such dedicationof the property should divest himself of such property and handover the possession thereof to the mutawalli. (Durr., 333; Princeof Arcot Endowments Estate v. Ponnuswami Nattar, A.I.R. 1955N.U.C. 3924 at p. 3925 (Mad.).; Mofizuddin Howlader v. AbdurRashid, (1983) 34 Dhaca Law Reports 36 (S.C.)).

It is settled position of law with regard to the Waqfs thatEthe Waqfs may be divided into two classes, i.e. (1) public and (2)private. public Waqf is one for public, religious or charitableobject. private Waqf is one for the benefit of the settlor’s familyand his descendants, and is called Waqf-alal-aulad. At one time, itwas considered that there must be dedication of the property toconstitute valid Waqf solely to the worship of God almighty himFor for religious or charitable purposes. (Mian Sahataz Pir v. Sk.Ahmed, 2013 (1) O.L.R. 898 at p. 904 (Orissa)).

The Waqif got himself divested of the property, the momentwaqfnama was executed and registered and named himself asmutawalli as before his death he used to spend money for religiouspurposes recognised by the Muslim Law, such as, sending personsfor Haj, incurring expenditure for burial of poor Muslim personsand also for conversion. (Assam Board of Waqf v. KhaliquorRahman, 1994 (1) Civil L.J. 684 p. 692 (Gau.):1994(1) G.L.R. 28at p. 29.)

The property whether movable or immovable must belongto the waqf. waqf is void for uncertainty. The waqf can becreated vivos of by deed or by will and if it is created by adeed and the property is immovable, and worth more than Rs.100/-, it has to be registered. waqf can be revoked only if it ismade by will and such revocation must be any time before deathof waqif. As soon as the waqf is created, the property at oncepasses to the God and neither it can be revoked nor the God canbe divested from the property and the waqf, even if there is anysubsequent breaches of the terms of the waqf or abuse by themutawalli of his office. It is also immaterial whether provisions ofthe waqf are carried out or not for that it is matter of breach oftrust only. It is also immaterial whether in case of immovableproperty whether the property was mutated in the name of waqfor personal name of the mutawalli in the revenue record. (AssamBoard of Waqf v. Khaliquor Rahman, 1994 (1) Civil L.J. 684 p.692 (Gau.):1994(1) G.L.R. 28 at p. 29.)”

25. There was no particular law dealing with Wakf or managementof Wakf property prior to enactment of The Wakf Act, 1954[19] in theerstwhile area governed by the Sovereign. The Hyderabad EndowmentRegulations[20] were sanctioned by the Sovereign on 16[th ]Shahban 1358Hijri (1349 Fasli and 1940 AD) and the same were also published in theGovernment Gazette (Volume 71, M 6). The said Regulations were inrespect of management and security of endowed property which wasincluded in the duties of the Government. The relevant extract fromsuch Regulations reads thus:

“Whereas the management and security of endowed property isincluded in the duties of Government therefore it is felt necessarythat some principle should be adopted so that these duties may bedischarged conveniently and efficiently and the intention of theperson endowing the property that humanity should be benefitedthrough the endowed property may be realized. Therefore thefollowing rules are framed:-

1. These regulations will be known as “EndowmentRegulations” and will come into force throughout the dominionsof H.E.H. from the date of publication in the Gazette (JaridaAlamia).

19 For Short “the 1954 Act”

20 Endowment Regulations

ADefinitions.

2. Unless there be something repugnant in the subject or context.

Endowment: With the exception of the property coming under thedescription of estate subject to the condition of service (MaashMashruthul Khidmath) every transfer of property which any personBmay have made for religious purpose or for purposes of charity orpublic utility will be called “Endowment”.

Endowment Property: The property which is transferred in thisway will be called “Endowed Property.”

Endower: The person transferring the property in this way willCbe called the “Endower” (Vaqif).

Kitab-ul-Avkhat (Book of Endowment): Means every suchregister in which all the estates or properties endowed under thisAct are entered.

Maash Mashruthul Khidmat (Estate Subject to the condition ofservice): Means the estate which has been conferred by the RulingSovereigns or the Governments of the time for religious purposesor for purposes of public utility and which has been held byGovernment in the department concerned as subject to thecondition of rendering of service.

Kitab Maashhai Mashruthul Dhidmath (sic Khidmat) (bookof estates subject to the condition of service): Means the registerin which estates subject tit condition of service under this Actare entered”

26. Rule 445 of the Rules relating to Endowment promulgatedand published in the Government Gazette (Volume 77, M 45) interms of Section 16 of the abovesaid Act reads thus:

“445. Grants subject to the condition of service being royal grantswill not be regarded as endowed property nor can proceedings beadopted for registration with regard to them.

xxx

447. The institution connected with the conditional Grant (Mash)to be regarded as endowed

i. Estates subject to the condition of service relating to theHInstitution connected with the conditional grants (Mash) will he

regarded as endowed and proceedings will be adopted inaccordance with these rules for entering the said estates in theBook of Endowments.

ii. Whatever other properties there may be connected with theinstitution they will all be regarded as endowed and proceedingswill be adopted according to these rules for their being entered inthe book of endowments.”

27. Section 69 of the 1954 Act as was originally enacted repealedThe Bengal Charitable Endowments, Public Buildings and EscheatsRegulations, 1810 (Bengal Regulation XIX of 1810), Section 5 of theReligious Endowments Act, 1863 (XX of 1863), The CharitableEndowments Act, 1890 (VI of 1890), The Charitable and ReligiousTrusts Act, 1920 (XIV of 1920) and The Mussalman Wakf Act, 1923(XLII of 1923). Thus, these Acts would not be applicable to any Wakfto which the 1954 Act was made applicable. Sub-section (2)contemplates that if immediately before commencement of the Act, inany State, there is in force any law which corresponds to this Act,such law shall stand repealed.

28. By Central Act No. 34 of 1964, clause (ii) was modified inSection 3(l) of the 1954 Act. The definition of Wakf after such amendmentreads thus:

(l) “wakf” means the permanent dedication by person professingIslam [or any other person] of any movable or immovable propertyfor any purpose recognised by the Muslim law as pious, religiousor charitable and includes—

(i) wakf by user;

(ii) grants (including Mashrut-ul-khidmat for any purposerecognised by the Muslim law as pious, religious or charitable;and

(iii) wakf-alal-aulad to the extent to which the property isdedicated for any purpose recognised by Muslim law as pious,religious or charitable;…”

29. The 1954 Act was then amended in 1984 (Amending Act No.69 of 1984) but none of the provisions of the said Act were notified tocome into force. Hence, the amendments made by such Act never becameeffective as part of the 1954 Act.

A30. The 1954 Act was later repealed by the Wakf Act, 1995[21] andthereafter amended by The Wakf (Amendment) Act, 2013. Since theissues in the present matter pertain to the period prior to 2013, the relevantstatutory provisions as were then in existence and as stated to be applicablein the present appeals by the learned counsel for the parties, arereproduced as under:B

“3. Definitions- In this Act, unless the context otherwise requires-

(c) “Board” means Board of Wakf established under sub-section(1), or as the case may be, under sub-section (2) of section 13and shall include common Wakf Board established under sectionC106;

xxxxxx

(g) “list of wakfs” means the list of wakfs published under sub-section (2) of section 5;

Dxxxxxx

(k) “person interested in wakf” means any person who is entitledto receive any pecuniary or other benefits from the wakf andincludes—

xxxxxx

E(p) “Survey Commissioner” means the Survey Commissionerof Wakf appointed under sub-section (1) of Section 4 and includesany Additional or Assistant Survey Commissioners of Wakfs undersub-section (2) of Section 4;

(q) “Tribunal”, in relation to any area, means the TribunalFconstituted under sub-section (1) of Section 83, having jurisdictionin relation to that area;

(r) “wakf” means the permanent dedication by any person, ofany movable or immovable property for any purpose recognisedby the Muslim law as pious, religious or charitable and includes—G(i) wakf by user but such wakf shall not cease to be wakfby reason only of the user having ceased irrespective of theperiod of such cesser;

(ii) “grants”, including mashrat-ul-khidmat for any purposerecognised by the Muslim law as pious, religious or charitable;and

(iv) wakf-alal-aulad to the extent to which the property isdedicated for any purpose recognised by Muslim law as pious,religious or charitable,

and “wakif” means any person making such dedication;

4. Preliminary survey of wakfs – (1) The State Governmentmay, by notification in the Official Gazette, appoint for the State aSurvey Commissioner of wakfs and as many Additional orAssistant Survey Commissioners of wakfs as may be necessaryfor the purpose of making survey of wakf in the State.

(2) All Additional and Assistant Survey Commissioners of Wakfshall perform their functions under this Act under the generalsupervision and control of the Survey Commissioner of Wakfs.

(3) The Survey Commissioner shall, after making such enquiry ashe may consider necessary, submit his report, in respect of wakfsexisting at the date of the commencement of this Act in the Stateor any part thereof, to the State Government containing thefollowing particulars, namely:—

(a) xxx

xxx

(4) xxxxxx

(6) The State Government may, by notification in the OfficialGazette, direct the Survey Commissioner to make second orsubsequent survey of wakf properties in the State and theprovisions of sub-sections (2), (3), (4) and (5) shall apply to suchsurvey as they apply to survey directed under sub-section (1):

Provided that no such second or subsequent survey shall bemade until the expiry of period of twenty years from the date onwhich the report in relation to the immediately previous surveywas submitted under sub-section (3).

5. Publication of list of wakf. – (1) On receipt of report undersub-section (3) of Section 4, the State Government shall forwarda copy of the same to the Board.

A(2) The Board shall examine the report forwarded to it under sub-section (1) and publish in the Official Gazette list of Sunni wakfor Shia wakfs in the State, whether in existence at thecommencement of this Act or coming into existence thereafter, towhich the report relates, and containing such other particulars asmay be prescribed.Bxxxxxx32. Powers and functions of the Board. – (1) Subject to anyrules that may be made under this Act, the general superintendenceof all wakf in State shall vest in the Board established or theCState; and it shall be the duty of the Board so to exercise its powersunder this Act as to ensure that the wakf under its superintendenceare properly maintained, controlled and administered and the incomethereof is duly applied to the objects and for the purposes for whichsuch wakfs were created or intended:Provided that in exercising its powers under this Act in respectDof any wakf, the Board shall act in conformity with the directionsof the wakf, the purposes of the wakf and any usage or customof the wakf sanctioned by the school of Muslim law to whichthe wakf belongs.Explanation.—For the removal of doubts, it is hereby declaredEthat in this sub-section, “wakf” includes wakf in relation to whichany scheme has been made by any court of law, whether beforeor after the commencement of this Act.(2) Without prejudice to the generality of the foregoing power, thefunctions of the Board shall be—Fxxxxxx(h) to take measures for the recovery of lost properties of anywakf;xxxxxxG(m) to inspect, or cause inspection of, wakf properties, accounts,records or deeds and documents relating thereto;(n) to investigate and determine the nature and extent of wakfand wakf property, and to cause, whenever necessary, surveyof such wakf property;Hxxxxxx

40. Decision if property is wakf property. – (1) The Boardmay itself collect information regarding any property which it hasreason to believe to be wakf property and if any question ariseswhether particular property is wakf property or not or whethera wakf is Sunni wakf or Shia wakf it may, after making suchenquiry as it may deem fit, decide the question.

(2) The decision of the Board on question under sub-section (1)shall, unless revoked or modified by the Tribunal, be final.

(3) xxxXXX

(4) xxxxxx

xxxxxx

105. Power of Board and Chief Executive Officer to requirecopies of documents, etc., to be furnished. – Notwithstandinganything contained in any law for the time being in force, it shallbe lawful for the Board or the Chief Executive Officer to requireany person having the custody of any record, register, report orother document relating to wakf or any immovable property,which is wakf property, to furnish subject to the payment ofnecessary costs, copies of, or extracts from, any such record,register, report or document and every person to whom such arequisition is made, shall furnish, as soon as may be practicable,to the Board or Chief Executive Officer copies or extracts fromthe required record, register, report or other document.

F. Facts leading to the present appeals.

i)Order of Nizam Atiyat Court

31. In the present matter, one Akbar Husaini sought an inam Inquiryto the maash[22] of Jagir villages including the village Manikonda on 12[th]Ardibehisht 1333 fasli (17.3.1923). Akbar Husaini again submitted plainton 9[th ]Amardad 1336 Fasli (15.6.1926) after Syed Akbar Husaini wasasked to submit plaint on 29[th ] Khurdad 1336 (4.5.1926). Jagir villageof Manikonda was claimed to be amaash land. Nizam Atiyat decidedsuch Inquiry on 31.5.1957 in File No. 2/56. This is the document whichis the primary basis of claim of the Wakf Board. The relevant extractfrom the order reads thus:

22 Also Mash- “the property or the grant”

“Order

The arguments of the parties and the Government Pleaderwere heard on 9[th] April, 1957.

The plaint of Akbar Husaini filed on 9[th ]Amardad, 1336 Fclaims confirmation of the following mashes as service maash ofDargah of Hazrat Husain Shah Wali:-

1.Gontapalli Village

2.Manikonda Village

3.Rayadurg Village (half) Known as Maoza DargahShareef

4.Makhta and Arazi Inam Shekhpet village Survey Nos.320, 324 acres, 3 guntas

5.AraziInam (Khankash in Qila Mohammadnagar 3acres Rs. 10/-

An Uzardari was filed by Ahmedullah Husaini on 12-2-37alleging that the maash was not Mashrut, but only zar-khareedand hence the shareholders were entitled to sharaee shares in the

Emaash.

In view of the facts of the case and the pleadings of partiesthe following issues require decision:-

1.Is the grant of jagirs and other maash covered byvalid sanads and can these be confirmed as Mashrutulkhidmatmaash in the name of the present claimant(incidentally, it will have to be examined how far thecontention of the Hzardars in respect of the natureof the maash, being zar-khareed is tenable).

2.Possession and enjoyment of the claimants over themaash.

3.The relationship of the present claimants and objectionpetitioners to the original grantee.

4.The relief to which the respective parties are entitled.

ISSUE NO.1: Jagir villages

(a)Gontapalli village ……..

(b)MANIKONDA: The petitioner relies mainly on themarginally noted documents# and orders in support of hisclaim for this village as Mashrut Jagir conditional onBservice to Dargah.

# 1. Copy of Ehkam of Nawab Mukhtarul-Mulk dated1249.

2. Letter of H.S. No. 75 dated 14[th] Azur, 1308F.

3. Letter of Daftar-e-Mal 2 of 13[th] Azur, 1320F, inverification of the No.1.

4. Ehkam of Nawab Mukhtarul-Mulk dated 16[th ]Rabiul-Awal 1275 H. regarding Guntapalli.

It should also be noted that the inam Enquiry of this villagewas conducted in Diwani and after completion of proceedings anInam Statement was prepared by the First Taluqdar on 19[th]Amardad, 1320 Fasli for sanction of higher authorities. But onaccount of controversy between Diwani and S.K.[23] on thequestion of jurisdiction no final decision was recorded on thestatement. In the Enquiry in Diwani Atiyat Courts this villageManikonda was recommended to be confirmed as aMashrutul-khidmat jagir for services to the Dargah in thename of the Sajjada of the time, Syed Akbar Husaini. Butsince the question of confirmation is now before this Court itis necessary to examine the evidence and record with viewto arrive at an independent decision on the question of thenature of maash namely whether it was granted as aMashrutmaash or was zar-khareed property.

xxxxxxxxx

……… The Ahkam dated 16[th] Babul-Awal, 1275 inrespect of the grant of Gontapalli jagir clearly mentions ManikondaGJagir as conditional on Ood-u-Gul[24]. Hence there is no strength inthe contention that the Jagir Manikonda was self-acquired property

23 “Sarfe Khas- private property of Sovereign”

24 Incense and flowers

Aand not an Atiya Shahi grant. Whatever may have been the natureof the maash when it was acquired, it was converted into, andwas confirmed as conditional Atiya Shahi Grant and treated assuch by competent Atiyat authorities of the time. Hence, Ientertain no doubt as to the nature of the Jagir Manikondabeing Mashrutatiya shahi grant for the service of DargahBof Husain Shah Wali. The kaifiatjagirdaranmentions thisvillage as conditional jagir. The Firman of the Nizam dated14[th] Azur, 1378 Fasli and 1[st] Ramzan, 33 also confirmed thisjagir as conditional jagir for the service of Dargah.

The fact that the jagirs were mortgaged to Hasan Bin Mohsin onC1[st] Rajab, 1296 with the sanction of Nawab Viqarul-umaraAmeer-e-Kabeer[25] also confirms the conditional nature of themaash. Otherwise, no permission of the Madarul Maham wasnecessary if the property was zar-khareed as alleged.

xxxxxx

xxx

DAs regards the issue no.2 regarding possession over thevillage of Guntapalli and Manikonda etc. and the lands in Shaikpetand Rayadrug etc. it is established from records since long time.The jagir villages and other properties have also been the subjectof prolonged litigation between the qabiz and hissedars in the civiland Atiyat Courts, ever since the of Mukhtarulmulk Bahadur. InErecent years the jagirs were under the supervision of committeeappointed by S.K. from 1343 to 1348 on the death of SyedAkbar Husaini and thereafter it was under C.W.[26] until it wasreleased from the C.W. only in 1956 through letter No. 545 dated29-5-56. Hence the maash is confirmed as follows:

F1. Villages Manikonda and Guntapally with all items ofRevenue inclusive of Excise as conditional on service toDargah.2. xxxxxxxxx.Issue No.3 :- The Shijra or family tree as filed by the parties in theGcase and given in the summary of the case above is admitted byall parties. Their respective shares in the 1/3[rd ]Biradari portionMashrut-ul-Khidmatmaash viz., jagir village of Guntapally and

25 MinisterH26 Court of Wards

Manikonda shall be worked out separately and form part of theMunkhab to be issued in this case. The rest of the property shallbe considered as madud Maush and governed by and the partiesshall be entitled to (legal) shares therein according to Siham-e-Sharai.The claimants Syed Shaha Safirulla Hussaini as Sajjadaand the performer of the service to the Dargah Sahrif shallbe entitled to 2/3rdaccording to Sula-o-Sulsan Rule in theMashrut-ul-Khidmat jagirs and his sharia share in the otherMaqtaas and Inam lands, subject to the Abolition of jagirsand commutation Regulation 1358 and the Abolition ofInams Act 1954.

(Emphasis supplied)C

xxxxxx”

32. The above order had reference to an order passed by theChief Minister, notified on 29.5.1956. The said order reads thus: -

“No. 545Dated: 29.5.56

BY ORDER OF CHIEF MINISTER

The estate of late Syed Akbar Husaini was taken undersupervision of Sarf Khas Court of Wards in 1349F. The sourcesof this estate were as follows:-

1. Manikonda village|situated in Hyd.

2. Darghah Sharif village | west Taluk

3. Inam lands at Shaikhpetand at Mohd. nagar fort.

4. Patta lands at illegible village of Bidar Taluk.

5. Patta lands at illegible village of Kalabgore Taluk.

6. Makta illegible (Raidrug village) Hyd. West Taluk.

The village No.1 and 2 have been handed over to theGovernment due to the abolition of Jagirs. As commutation of thesaid Jagirs, Jagir Administration’s Office was sending amounts tothe extent of the share of the dependents of the estate to thisoffice and the rest to the Muslim Waqf Board, towards the serviceexpenses of Darghah known as Hussain shahWali.

There are several dependents in this estate. Inam andsuccession Enquiry is pending in the Atiyat Court. The heirs ofthe deceased Sajjada Syed Akbar Hussaini are as follows:

1. Syed Safiullah Hussaini son.

2. Syed Nademullah Hussaini, son.

3. Fatifunnia Begum mother of No.2.

4. Fatima Bi mother of No.1.

5. Mahoob Sahed Bi daughter of No.2

No.2 and 3 have migrated to Pakistan. Apart from the abovepersons, the other dependents were paid their Guzarafrom theincome of the estate.

The properties were meant for the service of the DarghahHussain Shal Wali and the maintenance of the late Sajjad’s familyand the other dependents. The affairs of the Darghah are beingmanaged by Muslim Waqf Board. Until the Inam and successionEnquiry case is decided finally by the Atiyat Court, it cannot besaid whether the Inam lands also come under the purview ofservice Inam or not.

The patta lands can be deemed as personal properties ofthe late Sajjada, which can devolve on his sons and widows. SyedSafiullah Hussaini has passed the age of majority and he is now23 years old. He can manage the personal properties and ownapproach the Atiyat Court to get the Inam and succession casedecided.

In view of the above reasons, the estate and person of theWard No. 1 and released from the Court of Wards supervision.Patta lands are released in favour of Syed Safiullah Hussaini andthe maintenance of his mother, niece and others will be chargeon him.

The cash balances of the estate will be kept in deposit withthis office pending final decision of the Atiyat in the inams andsuccession case and pending final settlement of accounts.

As such the estate is released from the Court of Wardssupervision on the lines mentioned above, from the date of issueHof this notification.”

33. This order of Nazim Atiyatwas given effect to when aMuntakhab[27 ]was issued as result of succession Inquiry held under theAtiyat Enquiries Act. The maash in respect of villages Manikonda andGuntapalli was characterized asa conditional grant to Dargah whereasMukhta land situated in village Raidurg and inam land situated in Shaikpetwas described as Madad Mash[28]. The final order mentioned in Column8 reads thus:

“In view of the proof, documents of grant, reports & oral evidenceproduced by the claimants & in view of the entries of the officeof Central Records, Mash (Grant) under this claim as mentionedin Column No.6 of this Muntakhab, the villages of Jagir Manikonda& Guntapalli are hereby declared as crown grant, with all itemsof income including excise, as conditional service grant of DargahHazrath Hussain Shah Vali Rh., & restored with the practice ofSuls-e-sulsaan (1/3[rd] 1/3[rd] 1/3[rd]) out of which Syed SafiullahHussaini as Sajjada service render of the Dargah shall get 2/3[rd]&in the balance 1/3[rd] the persons of Bradri (family) mentioined inColumn 4 of this Muntakhab shall get their shares are per Shariat.And the lands of Maqta & Inam situated at Shaikpet & TaluqaMohammed Nagar & Raidurg (properly known as DargahShareef) are proved to be self acquired & in view of longpossession & enjoyment are hereby restored as Madad Mashaccording to their Sharai shares in favour of the persons mentionedin Column No.4 of this Muntakhab.

Conditional service grant shall be governed under the orders ofinclusion of Jagirs & Madad Mash shall be governed under theorders of abolition of Inams. Therefore steps shall be taken forimmediate execution.

Sd/- 25-11-1358F”

34. The Nazim Atiyatd is missed the review by an order dated24.09.1958. An appeal was thereafter filed before the Board of Revenueagainst the said order in review, which was dismissed on 14.11.1958 asnot maintainable. Some of the persons aggrieved against the order passedin review filed Writ Petition No. 666 of 1959 under Article 226 of theConstitution before the High Court of Judicature at Hyderabad. It wasthereafter that the High Court returned the following finding:

27 Document in the nature of decree

28 Grant in Aid

A“As regards the character of the lands, so far as the jagir villagesof Guntapalli and Manikonda are concerned, I have no doubt inmy mind that they were rightly held to be villages granted asconditional grants in favour of the Dargah and I am unable todiscover any error in respect of that finding. Regard to otherproperties in Raidurg, Shaikpet and Qull Mohammad Nagar alsoBthe Nazim Atiyat has held that they are zarkhareedmaktha landsconstituting madad mash.”

ii) Facts leading to the impugned Notification

35. Survey Commissioner was appointed to conductan inquiryCin respect of wakfs in the State of Hyderabad in terms of Section 4 ofthe 1954 Act sometime in the year 1961. Such Survey Commissionersubmitted his reports bearing serial number 259-263 on or about17.12.1970 / 28.1.1971. The report at serial number 262 had followingnote in the remark’s column, which reads thus:

D“The Dargah is looked after by the Mutawalli. In the past theJagirs of Manikonda, Dargah Hussain Shah Wali and Gunthapalliwere given for the functioning of the Dargah and annual Urs.The particulars of the compensation received used by theMutawalli are not known. Sd/- R.I. Narsinghi.”

E36. On the basis of such survey reports, notification was publishedon 9.2.1989 in the Andhra Pradesh Gazette declaring 5506 sq. yards i.e.,3165 sq. yards pertaining to Dargah Hazrath Hussain Shah Wali; 1222sq. yards pertaining to Khanqah with Mosque and well area and houseon the north side of Khanqah area admeasuring 1069 sq. yards as wakfland. The notification mentioned Syed Safiullah Hussain as the MutawalliFof the Wakf. The property in question appears at Sl. Nos. 3057, 3058and 3059. The description of the properties notified as wakf in suchnotification reads thus:

37. perusal of the documents filed by the Wakf Board beforethis Court shows that it was on 30.1.2005 that Syed Safiullah Hussaini,the Mutawalli, wrote communication to the Chief Executive Officer ofthe Wakf Board to constitute Managing Committee to protect the Wakfproperty and the service Inam land to an extent of 1654 acres situated inManikonda Jagir Village as it had not been notified in the Andhra PradeshGazette. The relevant extract from the letter reads thus:

“I, hereby submit the following few lines for kind considerationand favourable immediate action.

I, submit that there is Darga known as ‘Darga Hazrat Hussain-Shah Vali’ situated at Hussain Shah Vali Village, RajendernagarMandal consisting of Darga, Khankha, Mosque, House notified inA.P. Gazette No. 6-A, dt. 9[th] February 1989 at Sl. No. 3055, 3057,3058 & 3059 under the towalliath of the Petitioner herein.

I am performing the duties of Mutawalli by conducting AnnualCeremony without any complaint from the public and devotees.

There is Muntakhab issued from the Nazime-Atiyat of A.P. infile No. 2/56 Atiyat in the year 1344 Fasli from which it is evidentthat there is service Inam lands to an extent of 1654 Acres situatedin Manikonda Jagir Village, but it has not been notified in A.P.Gazette. There are several share holders to be benefitted fromthe income of Darga and its attached properties under the rule ofSulse Sulsan as mentioned in the Muntakhab. I further submitthat I am in old age having above 80 years and found it difficult toprotect the service inam lands now days due to interferencefrom various corners and without getting any source of incomefrom the said property. As such I am only depend upon the incomesource of Darga alone which itself found to be very meagre forlivelihood and maintenance of the institution.”

38. notification was issued by the Minority Welfare Department,Government of Andhra Pradesh, prior to the aforesaid communication,constituting Second Survey Commissioner on 3.3.2001 inter alia on theground that the first survey was conducted about 40 years back. Suchnotification was issued in exercise of powers conferred under Section4(6) of the 1995 Act. Though the survey was not complete, the WakfBoard sought copy of the report of the second survey videcommunication dated 2.9.2005 inter alia on the ground that an area of

A1654 acres and 32 guntas was held to be service Inam land in the villageManikonda. Reference was made to the order of Nazim-Atiyat of31.5.1957 that village Manikonda and Guntupalli with all items of revenueinclusive of excise were conditional grants for service to the Dargah.

39. Such documents filed by the Wakf Board before this CourtBshows that firstly the Chief Executive Officer of the Wakf Board soughtsupply of village map of Manikonda Village. It was on 25.3.2005 thatPahani for the year 1950-51 was sought. The Chief Executive Officerof the Board had subsequently written letter on 2.9.2005 to the secondsurvey commissioner to seek copy of the Survey Report. The saidletter reads thus: -C“This is to state that the Darga Hazrath Hussain Shah Vali situatedin Hussain Shah Vali (V) of Rajendranagar (M) is notified wakfin A.P. Gazette No. 6-A dated 09.02.1989 at Sl. No. 3055, 3057,3058 and 3059.

According to the information furnished by the petitioner/muthawalliDthe said subject institution has service inam land in Manikonda(V) convering an area of 1654-24 guntas, as per Sanad of 1249.As per the judgment of Nazime-Atiyat dated 31.05.1957 in F. No.2/56 Inam, Medak of 1344 Fasli, the Village Manikonda andGuntupalli with all items of Revenue inclusive of Excise andEconditional on service to Darga declared.

Please furnish the copy of Second Survey Report of the said subjectinstitution together with details of the service inam land attachedto the said subject institution early for further follow up action bythe Board.

Yours faithfully,

Sd/- xxxxxx

Chief Executive Officer”

40. The second survey report was accordingly sent to the WakfBoardon 30.9.2005. The office noting which led to the issuance of ErrataGnotification, as per the record produced, reads thus: -

“Submitted:-

In this case the Surveyor of Wakf Board collected the copiesof Old pahani for the year 1951 and Khasrapahani for the YearH1954-55 in respect of the land relating to D. Hzt. Hussain Shah

Vali situated in Manikonda(V) and submitted his report along withcopies of said revenue record. It is evident from the entries ofrevenue record all the Survey numbers shown as Governmentland Porombok. detailed letter were already sent theGovernment on 23-5-05 marking copy to the Collector, R.R.District for necessary action. There is no response from theGovernment as well as Collector R.R. District in this respect.

It is brought to the notice of this office that Sy.Commissioner of wakf have covered the said subject institutionduring second survey. As such the Sy. Commissioner of wakfmay be addressed to send copy of Sy. Commissioner’s reportof Second survey for taking further action. If pleased draft placedbelow may be approved.

After verification of Sy. Nos. & area from the existingrecord available in the files in respect of Manikonda Jagir (v)further action can be taken in the matter.

Further the particulars of Service Inamlands situated atGuntapalli of Sanga Reddy (m) in Medak Dist. Quila Mohd. Nagar(v) in Golkonda (m) as well as Hussainsha(v) may be obtainedimmediately from the concerned Mandal for taking further action.

Sd/-Sd/-EO 10.10.05CEO 12.10xxxxxx

Submitted– It is submitted that the Sy. Commissioner of Wakf,AP, Hyd. submitted his 2[nd] survey report in respect to the subjectinstitution and its attached landed properties.

But present Gazette publication – not shown the Sy. Nos. and itsattached properties of the subject institution.

In view of the above Gazette publication may be published inthe Gazette by sending an errata to the Govt. printing press, Hyd.Submitted for orders.Sd/-

In the earlier publications, the S.Nos. and area attached to theInstitution have not been notified in the Gazette. As per 2[nd] survey

[2022] 19 S.C.R.

Areport, an addendum may be issued for publication in the Gazetteto the extent of Manikonda Village lands, if pleased.

3) The Addendum Notification as approved by the S.O., on 8-12-05 may be sent to the Commissioner of Printing Press forpublication in the Gazette.

DAccording to the ‘Satwar’, the total area of each and every Sy.No. comes an extent of AC 1766-04 gts.

The statement is placed below for kind perusal and further ordersas deem fit and proper please.

ANDHRA PRADESH STATE WAKF BOARD

F.NO. M1/69/PROT/RR/04Dated 13.3.06

Sir,

Sub: Wakfs-RR Dist.-Rajendranagar (m) Manikonda (v) DargahHazrat Hussain Shah Vali-Eraata to the earlier GazetteNotification-Published-Req-Reg.

Ref.: Gazette Notification No 6-A, Dated 9-2-1989 at page no262 Under Sl No 3057, 3058 and 3059.

I am sending herewith an addendum notification to the earlierGazette notification No. 6-A, Dated 9-2-1989 at page no 262 underSL no 3057, 3058 and 3059 of the subject institution.

This may kindly be published in the next issue under intimationto this Office.

Kindly intimate the publication charges immediately forpayment.

Encls:- Errata to notification.

Yours faithfully,

CHIEF EXECUTIVE OFFICER13.3.”

41. It was thereafter thatthe impugned Errata notification waspublished which has been reproduced in the opening part of this judgment.

42. The records,from the Criminal Court wherein trial of offencesunder Sections 468, 471, 420, 474, 475, 467 IPC, were requisitioned toexamine the original second survey report. perusal of the said surveyreport shows that white fluid has been applied over the word ‘Nil’ in ananswer to Col. No. 11 and also over 3-4 lines at page 4 of the reportunder the heading “remarks” written with hand. The reference to “forremaining Inam lands, pl. see remarks” at page 2 is above the column“Gross Income of the property as Rs. 4104.16 ps from Jagir”. Theresponse to words “remarks”which is mentioned at page 4 states that,“as per letter of Syed Saifullaah Hussani (illegible) dt. 4.2.02, the entirevillage of Manikonda Jagir is Inam Mashtrul Qidmat attached to DargahHussain Shah Vali”.The words at page 2 “Inam lands situated at villageGuntupalli, Qila Mohd. Nagar, Golconda and agriculture lands at DargahHussain Shah Vali Village” are in different handwriting than the entriesmade against column numbers 1-10. The handwriting in response toCol. No. 11 on page 1 and page 2 is also different. The second part ofremarks at page 4, after the use of white fluid, is that an area of 932 sq.yards is in illegal occupation of five personsis in the same handwritingas response to Column No. 1 to 10.

DEF

A43. The overwriting and additions show that total extent of 1654acres and 32 guntasis in different handwriting and has been addedsubsequently after applying white fluid. However, since the trial is pendingfor the offences under Sections 468, 471, 420, 474, 475, 467 IPC inrespect of determining who had made such alterations, nothing more isBrequired to be said in the present proceedings.iii) Facts Leading to the Writ Petitions before the HighCourt

44. The Errata notification dated 6.4.2006 was challenged by theState along with the Corporation whereas other writ petitions were alsoCfiled disputing the said notification. In the said writ petition, it was, interalia, pleaded that Manikonda is jagir village and that pursuant to theAbolition Regulations, the said village vested in the State Governmentunder Section 6 of the said Regulation. As per Government Order No.1dated 03.10.1949, all jagir villages have been taken over by the DiwaniD(Government) by the end of September, 1949. Thus, there was no wakfproperty before the enactment of 1954 Act. It was also pleaded that allrevenue records from times immemorial show that the land of ManikondaVillage has been government land. The Errata notification publishedon 6.4.2006 has created cloud on the right, title and interest of theEState overthe lands at Manikonda village. It was pointed out that thenotification has been issued without following the mandatory provisionsof the Act. It was further contended that the second survey report wastampered as was clear from the over-writing/corrections to the nakedeye andeven the signatures of Mandal Revenue Officer, Serilingampallyand Mandal Revenue Inspector were forged as per their statements. ItFwas pointed out that the survey report has not been submitted to theState Government and the term of the Survey Commissioner was beingextended from time to time. Referring to the order passed by NazimAtiyat, it has been asserted that Manikonda was jagir village whichwas originally granted to one Safirullah Hussaini. He had mortgaged theGland to Hussain Bin Muqaddam Jung on 1[st] Rajab 1295 (20.6.1879).After the death of both of them, mortgagor and the mortgagee, AkbarHussain, son of Safirullah Hussaini applied to the Sovereign for re-grantwhich was allowed on 1[st] Ramzan 1333 A.H. (13.07.1915). The saidgrant, produced by learned counsel for the Dargah reads thus:

“Farman of Nizam

After looking into the application of Finance department dated29[th] Shaban 1333 A.H. in which it is submitted that the properties(Jagirs) of Dargah Shareef of Hazrath Hussain Shah Wali, whichare mortgaged with the factory of Hasan Bin Mohsin (under thesupervision of the Government) may be released as per the requestof the Sajjada of the Dargah.

Order (Farman)

According to the opinion of Finance Minister and Director Generalof Revenue Department if the Sajjada repays the amount he owesto the factory of Hasan Bin Mohsin the properties belonging toDargah Shareef may be released under the following conditions.

1)The Sajjada of the Dargah shall regularly the amount ofshare to the other shareholders who have the right to receivemaintenance allowance required for their upkeep andsustenance. If the amounts are not paid, the revenueDdepartment shall decide about it.

2)If the Inam Inquiries or inheritance inquiries are required, itshall be done as per the rules and regulations.

Wednesday

1[st] Ramzan 1333 A.H.”

45. Akbar Hussain died on 1[st] Bahman 1343 Fasli (4.12.1934).His two sons, Syed Nadeemullah and Safirullah Hussaini were minors.Therefore, the management of the estate was taken under the supervisionof the Court of Wards in 1349 Fasli (1940). Syed Nadeemullah thenmigrated to Pakistan. An order was issued in favour of the legal heirs ofSafirullah Hussaini by the Nazim Atiyat after detailed inquiry asmentioned above.

46. Since the jagir of Manikonda village stood abolished, thecommutation amount under the Commutation Regulation was paid tothe legal heirs vide Muntakha border No.98 of 1958. The order of theNazim Atiyat itself clarifies that Manikonda jagir and Guntapalli jagirwere subject to Jagir Abolition and other properties were subject to InamAbolition. It was pointed out that grant of jagir as Mashrut-ul-Khidmat

Awas specifically excluded from the purview of the EndowmentRegulations. The Sovereign continued to possess the land as title holderbut only the usufruct couldbe used by Muttawali. It was pleaded thatgrant of such jagir stood abolished under Section 16 of the AbolitionRegulation which came into force on 15.8.1949, therefore, Mashrut-ul-Khidmatas part of wakf in 1954 Act or 1995 Act would not apply to theBlands in question.

47. It was also pleaded that the order of Nazim Atiyat was passedunder the provisions of Atiyat Enquiries Act which specifically providedfor and dealt only with the claims of succession relating to the commutationsums in respect of abolished jagirs/Inams. Thus, the property did notCretain any of the characteristics of Mashrut-ul-Khidmat post the abolitionof jagirs and that Nazim Atiyat had no jurisdiction to decide the title tothis land.

48. In counter affidavit filed on behalf of the Wakf Board, it hasbeen averred that the Errata notification is in respect of property attachedDto the wakf institution or Dargah which was granted by the Sovereignand confirmed by the Chief Minister relying upon an order passed byNazim Atiyat Court. Reference has been made to the report of the FirstSurvey Commissioner that Manikonda and Guntapalli jagir villages wereallotted to Dargah for rendering services to the institution. Thus, ErrataEnotification is not new notification as the requisite details would haveto be provided in the original notification itself. It was pointed out thatManikonda was granted to Hazrath Shaik Bade Saheb and was in thelist of exempted grants. Therefore, Section 6 of the Abolition Regulationhas no application to Manikonda village. The order of the Chief Ministerdated 29.5.1956 was referred to contend that the villages of ManikondaFand Dargah Sharif have been handed over to the custody of theGovernment due to abolition of jagirs. The commutation amount sent bythe Jagir Administration to the descendants of the holder of the estateand rent to Muslim Wakf Board was towards service expenses of theDargah. The properties were meant for the service of the Dargah only.GThe affairs of the Dargah are being managed by the Muslim Wakf Board.In respect of submission of the Survey Commissioner Report to theGovernment, it was averred that the Government acts as mereministerial conveyor of the report.

49. It was further contended that the information furnished by theHSurvey Commissioner was not treated as survey report, it was merely

an information provided by the Survey Commissioner. The Board hasthe requisite powers to secure information and take steps on suchinformation received. It was asserted as under:

“A valid title, legally sustainable stand, and true details, cannot beignored on the ground of procedure not being followed especiallywhen that procedural step complained about is merely that thereport reached the Board at its instance directly and not throughthe government.”

50. The order of the Sovereign dated 1[st] Ramzan 1333 A.H.(13.07.1915) was said to be misconceived as grant was given to AkbarHussain subject to his doing service to the Dargah. Thus, grant in thename of an individual doing service or rendering service to any Wakfinstitution cannot be treated as grant in the name of any individual butit is the property of the Dargah and falls within the definition of Wakf.The Endowment Regulations excludes Mashrut-ul-Khidmat asendowment or Wakf. The specific averment in the counter reads thus:-“In reply to the averments that the order of Nazim Atiyat dated31.5.57 shows that the said lands were never granted to the Dargahbut only granted by the HEH. The Nizam to Akbar Hussain S/oSafiullah Hussaini on 1[st] Ramzan 1333 Fasli subject to his doingservice to the second respondent Dargah is misconceived, becauseit has been held by the Hon’ble High Court as well as by theHon’ble Supreme Court of India that “A grant in the name of anindividual doing service or rendering service to any wakf institutioncannot be treated as grant in the name of an individual but it isthe property of the Dargah and it falls within the definition ofWakf. It is absolutely incorrect to interpret that the grant of Jagiras Mashrutul Khidmat was not treated as endowment or wakf isalso clear from the exclusion of such grant i.e. Mashrutul Khidmatfrom the purview of the Hyderabad Religious EndowmentRegulations of 1349 Fasli. It is absolutely incorrect to say that theRuler Nizam continued to possess the land as title holder onlyusufruct to the Mutawalli.”

51. It was also averred that the concept of Mashrut-ul-Khidmathasbeen in existence even before the 1954 Act as such grant is recognizedby Muslim law as pious, religious and charitable. It thus acquired thecharacter of wakf even before the codification of wakf law.

A52. It was submitted that by the Abolition Regulation, jagirs werenot abolished but only jagirdars were. The revenue collecting roles ofjagirdars was taken over by the Jagir Administrators. When Jagir hasbeen granted as Mashrut-ul-Khidmatin respect of wakf institution, it isa permanent dedication and the grantor ceases to have any title orownership of the said property. The object of grantee to offer Oodh-O-BGul is offering Fateha, religious observance. It was denied that theproperty did not retain any of the characteristics of Mashrut-ul-Khidmatpost the abolition of Jagir.

53. As per the list of dates and factual background along withwritten submissions on behalf of Telangana Wakf Board submitted toCthis Court, it has been submitted that as per the official revenue recordof the year 1913, the land of Manikonda is shown to be as Governmentland. It has also come on record that the land in Manikonda village wastransferred to the Corporation. It is the stand of the Wakf Board that noobjections were filed against the Government memo as the land wasDwrongly described as Government land.The Corporation issued anadvertisement on 22.9.2004 inviting bids of private developers fordevelopment of IT Parks and in response, certain private parties submittedtheir bids. But before issuing allotment letters, public notice was issuedby the State Government on 27.7.2005 inviting objections to the allotmentsproposed to be made. However, no objections were filed by any personEincluding the Wakf Board. It was thereafter that the land was allotted on17.8.2005 to the various private allottees. It is the stand of some of theappellants such as Emaar Hills Township P. Ltd. that the land was allottedto the said appellant in the year 1999 and the construction was raisedthereafter.F

54. In the counter affidavit filed by the Wakf Board in WritPetition No. 4515 of 2008, it was submitted that the royal grant asdisclosed from the Muntakhab was granted for rendering service toDargah even though name of the grantee was mentioned therein. Whenthe grant has beenfor rendering service, even after the death of grantee,Gthe property would never revert back to ruler but shall continue to bein the name of Dargah.

55. The High Court vide common order decided three writ petitionsfiled in public interest to challenge the alienations made by the State orthe Corporation. Writ Petition Nos. 6148 of 2008 and 28112 of 2007Hwere filed on behalf of alleged pattedars whereas Writ Petition No.

4515 of 2008 was filed by an allotee of land from the Corporation. TheHigh Court examined the three following questions:

“I. What is the effect of Hyderabad (Abolition of Jagirs),Regulations, 1358F and the Hyderabad Jagir (Commutation)Regulations, 1359F and whether the lands vested in the StateGovernment after abolition, of Jagirs?

II. Whether the errata notification dated 06.04.2006 is, ultra viresthe provisions of the Wakf Act, 1995?

III. Whether the writ petitions challenging the errata notifications,are maintainable and whether they are barred in view of theeffective, and efficacious alternative remedy available under theWakf Act, 1995?”

56. The High Court, inter alia, held that wakf is presumed byuser and whatever properties are treated as wakf cannot be reversedbecause it always remains wakf. The High Court culled down thefollowing principles in respect of wakf property:

“32.At this stage, instead multiplying the authorities, we mayreiterate, the well known principles in this regard.

(1)Mohamedan Law of wakf owes its origin to rule laid,down by the Prophet and means “tying up of property inEthe ownership, of God and Almighty and the devotion ofthe profits for the benefit, of human beings”.

(2)When founder dedicates the property for wakf, the,ownership of the founder is completely extinguished.

(3)When once it is declared that particular property, is wakfor any such expression is used implying wakf or thedocument, shows that there is dedication for pious orcharitable or religious, purpose, the right of the person isextinguished and the ownership, is transferred to theAlmighty. The manager of wakf is mutawalli. Thoughmutawalli is the administrator, governor, superintendent or,curator of the wakf property, he has no right in the propertybelonging, to the wakf.

(4)The dedication need not specifically be in favour of, placeof worship, khankah, Dargah, cemetery etc. It is enough if,

1286SUPREME COURT REPORTS

[2022] 19 S.C.R.

Athe dedication is made for the purpose recognized by Muslimlaw as, pious, charitable or religious.

(5)Service inam granted to individuals burdened with service,for the purposes which are pious, religious or charitable,answers, description of all the ingredients of wakf.

(6)Even if the grant of the land is for rendering service, towakf, the construction of mosque or khankah on the landitself, is sufficient proof of dedication to wakf.

(7)When once the property is held to be wakf, it always, retainsits character as wakf and the grant of patta to service,Cinamdars and persons in possession, does not in any mannerchange, its character.

(8)In case where the inam is service inam for rendering,service in connection with pious, religious and charitablepurpose, the holder of the inam burdened with service doesnot acquire title, to that property. If the land is resumedfrom such inamdar for non-performance, of service andre-granted to another person in only means that the, wakfis entrusted to another individual to perform service.”

57. In respect of post abolition situation, the Court held as under:E

“35. There are special provisions in the Abolition Regulation, Rulesmade thereunder and Jagir Commutation Regulations concerningthe grants made to support religious and charitable institutions. Asper the proviso (b) to Section 16 of the Jagir Regulations, thedistribution of the net income shall be effected as far as possibleFas per the wishes of the grantor and to be in consonance with thecustom and usage. Rule 6 made under said Regulations containsthe method of distribution of net income as contemplated underthe proviso (b) to Section 16. The principle adumbrated therein issuls-e-sulsan. According to this, one half of the income shall bespent for fulfillment of the object and the remaining half would beGdistributed equally between the jagirdar, mutawalli or other personsentitled to perform the duties and hissedars (legal heirs of theinamdar). This is further clarified by Regulation 10(2) of theCommutation Regulations, which obliges the Government to pay90 per cent. of the gross basic sum of commutation to the institutionHevery year commencing from 1st April, 1950 for the service of

the institutioa Prima facie, none of these provisions help theAdvocate General in sustaining the argument that on payment ofcommutation, Mashrut-ul-khidmat stands reversed and vests inthe sovereign/Government. That being the case, the presumptionthat the title to the tract of land in the territory always vests in thesovereign in the absence of any claim by others (reiterated in R.Hanumaiah v. State of Karnataka, (2010) 5 SCC 203) is notattracted.”

58. Still further, the High Court relying upon the Muntakhab issuedby Government of Nizam in 1249 Fasli, the notification from NazimCourt of Wards dated 29.3.1956, the order dated 31.5.1957 of the NazimAtiyat and consequential Muntakhab dated 26.11.1958, the provisionalcommutation award dated 30.09.1952 and the order of the High Courtdated 14.12.1961, held as under:

“36. ..….The State would like this Court to draw an inferencefrom these documents mat the grant being Mashrut-ut-khidmatand there being no proven dedication, the land vested in theGovernment after abolition of jagirs. The Wakf Board of Dargahalso rely on these documents as well as three comparatively recentdocuments, which are the Government Memoranda/correspondence between the Secretaries to the Government i.e.,Memo dated 25.1.2007, and two letters dated 4.5.2007 and12.6.2007 to press the submission that from the date of grant, theManikonda land was Wakf and even after abolition of jagirs andin spite of the payment of commutation amount to legal heirs andhissedars, it retained the character of being the Wakf. In ourconsidered opinion, all these documents need to be clarified andexplained by whoever party relying on them. Unless deeperprobe in relation to the contemporaneous circumstances and thecontextual events of the period when the ancient documents cameinto existence (may be by oral evidence or by other documents),it is not possible at all to countenance submission of the AdvocateGeneral that the subject land is not Wakf and it was taken over bythe Government on abolition of jagirs.”

59. The High Court found it to be very doubtful while referring tothe Abolition Regulation as to whether the Government can claim anyvested right in such Inam. The High Court was not inclined to go deeperinto these issues. The following reasons were recorded:

DEF

A“38. Thus, the Jagir Regulations, Commutation Regulations andInams Abolition Act treated all the jagirs and inams held for thepurpose of support of charitable and religious purposes includingthe Wakfs differently. Those inams, in law, if proved are to beheld as endowments to the charitable and religious institutions liketemple or Wakf, and it is very doubtful whether the GovernmentBcan claim any vested right in such inams. We are not inclined togo deeper into these issues for the reasons infra. We have onlyconsidered the submissions with reference to the plain meaningof the provisions to which our attention has been invited. Further,there are also seriously contested questions as to the nature ofCthe Nizam grant to the Dargah and the right claimed by the legalheirs of the gantee. Both the parties have various documents intheir armoury, some of which are produced before this Court. Allof them call for interpretation and inference subject to furtherclarifications.”

D60. In respect of the Errata notification, the High Court found thatSections 4 and 5 of the 1995 Act form one group, Sections 6, 7 and 83are adjudicatory provisions applicable in the event of dispute regardingwakfs whereas Sections 40 and 41 read with clause 32(2) of the 1995Act form another group of provisions. The High Court found as under:

E“44. An analysis of the above provision would show that the WakfBoard can itself collect information regarding any Wakf propertywhich it has reason to believe to be Wakf property. This power ofthe Wakf Board to collect information on its own is not subordinateto the power of the State Government under Section 4(1) to appointSurvey Commissioners. Sections 4 to 8 appear in Chapter II, whichFdeals with survey of Wakfs and Section 4 only speaks of“Preliminary Survey of Wakfs”. Chapter V (Sections 36 to 43)deals with the registration of Wakfs. The law requires that everyWakf whether created before or after commencement of theWakf Act, shall be registered at the office of the Wakf Board.GEven if Wakf is not surveyed or mentioned in the report submittedby the Survey Commissioner under Section 4(3), even then thereis an obligation for registration of every Wakf, and as per Section43, all the Wakfs registered prior to the Wakf Act shall be deemedto have been registered thereunder. In this context, Section 40assumes significance. Sub-section (3) thereof contains non-

abstante clause. This overrides other provisions in the Wakf ActNotwithstanding anything contained in the other provisions of theWakf Act, under Section 40(3) the Wakf Board may hold anEnquiry and if it is satisfied that property is Wakf property,can issue notice to the Trust or Society and then register underSection 36.”

61. The High Court found that reading of Sections 6, 7 and 83 of1995 Act leaves no doubt that the question whether particular propertyspecified as wakf property in the list of wakfs is wakf property or nothas to be adjudicated by the Wakf Tribunal in suit instituted for thesaid purpose. It was also held that Section 40 is wide enough to conferpowers on the Wakf Board to issue the Errata notification and it is neithernecessary for the Government to appoint Second Survey Commissionernor for him to submit report.

62. In respect of the third issue as to whether the writ petitionsare barred, the High Court held that the Act requires all disputes, questionsor any work or other matters whatsoever and in whatever manner whicharise relating to Wakf or Wakf property, are to be adjudicated only bythe Wakf Tribunal. After considering various judgments, the High Courtheld as under:

“73. In view of the binding precedents of the Supreme Courtdirectly on the point as to the bar of writ petitions in relation todispute, question or any matter relating to Wakf in view of Sections6, 7, 83 and 85 and also the power of the Wakf Board to causeregistration of Wakf or to amend registration of the Wakfs underSection 41, we have no hesitation to hold that this Court cannotentertain writ petitions filed by the State and others to whom eitherthe Government or the APIIC allotted portions of Manikonda lands.To avoid adding to the length of this judgment, it not necessary torefer to various other judgments referred to by the Counsel forthe Wakf Board on the question of maintainability of writ petition.We are also not impressed with the submission of the AdvocateGeneral that the issue raised in these writ petitions does not involveany disputed question of fact or the issue raised in these writpetitions is beyond the purview of jurisdiction of Wakf Tribunal.”

63. The aforementioned findings recorded by the High Court aresubject matter of challenge in the present appeals.

AG. Arguments of the Appellants

64. Mr. V. Giri, learned Senior Counsel appearing for the State,inter alia, raised various arguments to challenge the order of the HighCourt. It was contended that no dispute was ever raised regarding allegedexclusion of properties belonging to Dargah in the first notification evenBthough the first survey report was sent to Wakf Board. It was at theinstance of the Wakf Board, the errata notification was published after along delay of 17 years. The impugned Errata notification has been issuedwithout following any procedure as prescribed under the Act on theground that certain lands were not notified in the notification dated09.02.1989. Even if the notification excluded certain land claimed to beCas wakf land, the Wakf Board could exercise suo motu powers underSection 40 of the 1995 Act. Such inquiry was required to be conductedafter compliance with the principles of natural justice, i.e., after grantingan opportunity to the affected parties. Since the land was shown as landof the State since 1912-13, the State was the affected party who wasDentitled to be heard before declaring the land in question to be wakfproperty. Still further, no objections were filed against the notice issuedby the State on 27.07.2005 within 15 days against the proposed allotmentof Government land to the Corporation. Since no objections were received,the Corporation further allotted the land to various private groups.Therefore, the actions of the Wakf Board in suddenly claiming rightsEover the property spread over alarge area of land are not bona-fide.Reference was made to judgment of this Court reported as M.P. WakfBoard v. Subhan Shah (Dead) By Lrs. and Others[29].

65. It was further averred that the survey report by Second SurveyCommissioner constituted vide notification dated 03.03.2001 was neverFsubmitted to the State Government as required under Section 5(1) of the1995 Act. Since the procedure mandated by statute has not been compliedwith, the Wakf Board could not cause the notification to be published onthe basis of report which was never submitted to the State Government.The said survey report had material alterations visible to the naked eye.GThe report though is subject matter of trial to determine who has causedthe alterations, but such report on the face of it could not be form basisof the notification. The stand of the Wakf Board that the Erratanotification is not based upon second survey report is not tenable as theproceedings produced by the Wakf Board show that such report as well

H29 (2006) 10 SCC 696

as the order of the Nazim Atiyat were the two factors considered whichled to impugned notification.

66. It was argued that Manikonda village was jagir village. Thejagirs were granted by the Sovereign for the lifetime of grantee andwere not heritable or alienable. After the death of jagirdar, it was thediscretion of the Sovereign to re-grant it. Reference has been made to ajudgment reported as Ahmad-Un-Nissa Begum and Another v. TheState through the Chief Minister and Others[30].

67. The Abolition Regulation abolished the jagirdars and vestedthe jagir land with the State in terms of Regulation 4 of the AbolitionRegulation. The jagirdars were to only get commutation value in lieu ofthe cash payments after the abolition of the jagirs. Regulation 16 abolishesthe jagirs granted to temple, mosque or any institution established for areligious or public purpose. It was argued that if the jagir granted tomosque stands abolished, the land which is conditional grant for theservice of the religious institution shall also stand abolished as necessaryconsequence of abolition of jagirs. The order of the Chief Minister dated29.05.1956 also shows that the Manikonda village has been handed overto the Government due to abolition of jagirs.

68. perusal of the order of Nazim Atiyat court shows that thegrantee is holding conditional grant for the service of the Dargah, andthat such grant is subject to the Abolition Regulation and Inams AbolitionAct. Therefore, even if the land of the Manikonda village was given asa conditional grant, the same stood abolished by virtue of the AbolitionRegulation. The Muntakhab shows that Syed Safiullah Hussaini wasgiven 2/3[rd] of the conditional grant in view of the practice of Suls-e-sulsaan that is 1/3[rd] each whereas 1/3[rd] was to be given to the otherfamily members. Such grant stood abolished with the enactment of theCommutation Regulation consequent to the Abolition Regulation. In termsof the order of Nazim Atiyat, the heirs of Syed Safiullah Hussaini werepaid commutation amount vide award dated 05.06.1959. Reference wasmade to judgment of this Court reported as Mohd. Habbibuddin Khanv. Jagir Administrator, Government of Andhra Pradesh and Others[31]to contend that as the Abolition and Commutation Regulations abolishedsuccession claim in respect of atiyat grants under Section 2 of the said

30 AIR 1952 Hyd 163

31 (1974) 1 SCC 82

AAct and the power and jurisdiction of Atiyat Court was confined to makeinquiries as to rights, title or interest in atiyat grants and also holdinginquiry into the claim of successions in respect of entitlement to receivesuch grants. Reliance has also been placed upon Division Benchjudgment of the High Court reported as K.S.B. Ali v. State of A.P. andOthers[32]. The petitioner had withdrawn the writ petition with permissionBto seek appropriate remedy in the Special Leave Petition filed beforethis Court against the judgment of the High Court. The Petitioner filedanother writ petition before the High Court. The said writ petition wasdismissed. In an appeal again the order passed in the second writ petition,this court in judgment reported as K.S.B. Ali v. State of A.P. andCOthers[33 ]dismissed the claim of the appellant based upon an order passedby the Atiyat Court.69. It was submitted that the argument that ‘once wakf alwaysa wakf’ would not be applicable on account of statutory abolition ofjagirdars and vesting of jagir land with the State including the lands ofDjagir lands dedicated to temple, mosque and other religious institutions.If the land given to the religious institutions stands abrogated, theconditional grant of service to such religious institutions cannot surviveas it is not larger than the jagirdari rights given to religious institutions.Any right in the wakf would not over ride the right of the Sovereign, whois the repository of all lands within his estate. Hence, the Abolition andECommutation Regulations would supersede any rights in the land includingthat of conditional grant for service to religious institution.

70. Mr. Giri further argued that in terms of 1995 Act, the jurisdictionof the Tribunal could be invoked only by person interested thereinapart from Board or mutawalli of wakf. Though the word ‘any personFinterested therein’ has been substituted by ‘any person aggrieved’ bythe 2013 amendment, therefore, on the date of the filing of the writpetition, the State could not have invoked the jurisdiction of the WakfTribunal. Referring to judgment of this Court in Rashid Wali Beg v.Farid Pindari & Ors.[34], it was argued that the question involved in theGsaid appeal was not validity of the notification or lack of jurisdiction orprocedural impropriety, which has arisen for consideration in the presentappeals.

32 (2007) SCC Online AP 76533 (2018) 11 SCC 277H34 (2021) SCC Online SC 1003

71. Mr. C.S Vaidyanathan, learned Senior Counsel appearing forthe Corporation submitted that the writ jurisdiction of the High Courtcannot be excluded only because there exist alternative statutoryremedies. The right to invoke writ jurisdiction is untrammeled by anyexternal restrictions. Reference is made to Committee of Managementand another v. Vice Chancellor[35] and Addl. Secy. to the Govt. ofIndia v. Alka Subhash Gadia (Smt)[36]. Reference was also made toK.K. Kochunni v. State of Madras[37], Whirlpool Corporation v.Registrar of Trademarks[38] and Balkrishna Ram v. Union of India[39].

72. It was argued that even if there was analternative remedyavailable, the High Court still has the jurisdiction in the following matters-(1) where the impugned action is in breach of natural justice, (2) wherethe challenge is to an action which is patently erroneous and ex faciewithout jurisdiction, (3) or the vires of legislation is challenged, (4) orwhere the writ petition has been filed for enforcement of fundamentalrights protected by Part III of the Constitution. It was argued that therehas been violation of principles of natural justice as State has beenrecorded as owner of the disputed land in the revenue records since1912-13 and that the Wakf Board failed to file objections before the landwas transferred in favour of the Corporation in 2005.

73. It was contended that the Wakf Board exercises quasi-judicialjurisdiction under Section 40(1) of the 1995 Act. Such fact is evidentfrom two facts, an inquiry which is required to be conducted and thedecision taken after the inquiry, which could be challenged before theWakf Tribunal. The legal principle as to when an act of statutoryauthority would be quasi-judicial act, is that where (1) statutoryauthority empowered under statute to do any act, (2) which wouldprejudicially affect the subject, (3) there is no lis or two contending partiesand the contest is between the authority and the subject and (4) thestatutory authority is required to act judicially under the statute and thedecision of the said authority is quasi-judicial. Reference is made toKranti Associates (P) Ltd. v. Masood Ahmed Khan[40]. An inquiry couldbe conducted only after hearing the affected parties. Since the decision

35 (2009) 2 SCC 630

36 1992 Supp (1) SCC 496

37 AIR 1959 SC 725

38 (1998) 8 SCC 1

39 (2020) 2 SCC 442

40 (2010) 9 SCC 496

Ais subject to the decision of the Wakf Tribunal, therefore, reasonedorder is required to be recorded by the Wakf Board which could betested before the Wakf Tribunal. The jurisdiction of the Wakf Tribunal isakin to the remedy of appeal against the order passed by the Board.

74. The Errata notification is alleged to be issued without jurisdictionBas no such notification could be issued summarily without conductingany inquiry, only on the basis that Manikonda village is conditionalgrant for the service of Dargah. It was further contended that Erratanotification could be issued only in limited circumstances where thereare clerical and arithmetical mistakes from accidental slip or omission,having parity with Section 152 of CPC. New rights could not be createdCover large chunk of land under the guise of Errata notification. TheErrata notification rather is in pith and substance, fresh notificationwithout following procedures prescribed under the 1995 Act. If the Actprovides particular method of doing an act, the act has to be performedin the same manner and all other alternativesst and excluded. It wasDalso argued that power under Section 32(2)(n) was only step-in aid ofa decision to be taken under Section 40 of the Act. Section 32(2)(n) ofthe Act empowers the Wakf Board to investigate and determine thenature and extent of wakf. The Board is thus competent to investigateand determine the nature of Wakf as step-in aid for its quasi-judicialdecision in terms of Section 40 of the Act. The determination in SectionE32(2)(n) has to be read along with Section 40 of the Act. Reference wasmade to judgment of this Court reported as Indian National Congress(1) v. Institute of Social Welfare[41].

75. Mr. Ranjit Kumar, learned Senior Advocate appearing for theM/s Lanco Hills Technology Park Pvt. Ltd. submitted that irrespectiveFof the decision on the validity of the Errata notification and the questionwhether the subject land is wakf property or not, the rights of theappellant as well as thousands of persons in whose favour rights andinterests in the properties have been created are to be protected by theappellant State and/or Corporation in view of the order passed by thisGCourt on 8.5.2012 and in view of the submission of the Wakf Board andthe Dargah. Further reference was made to affidavits filed by the ChiefExecutive Officer of the Wakf Board on 7.11.2010 and on 14.4.2011regarding claim of monetary compensation.

76. It was argued that no inquiry as envisaged under Section 40of the 1995 Act was made, no notice was issued and no decision wastaken by the Board. There was no document or even an assertion to theeffect that the Board invoked Section 40 or took decision that 1654acres of land was wakf property. Reliance is placed upon Subhan Shahconsidering pari-materia Section 27 of the 1954 Act with Section 40 ofthe 1995 Act that the Board could have initiated proceedings under Section27 of the 1954 Act but in the present case, no suo moto proceedingswere initiated by Board and no notice in this behalf was issued to any ofthe interested parties.77. It was also contended that Section 40 does not envisagepublication of notification in Official Gazette. The publication ofnotification is only contemplated under Section 5 of the 1995 Act.Therefore, the argument that Board had exercised powers under Section40 is absolutely misconceived. It was further contended that the Boardwas not categorical as to whether the said decision has been taken underSection 40 or under Sections 4 and 5 of the 1995 Act. In fact, the Boardtried to justify the adherence to the procedure prescribed under Sections4 and 5 of the 1995 Act when it is said that the second SurveyCommissioner was appointed by the State Government, therefore, it ismeaningless to say that no notice was issued by the Survey Commissionereither to the State Government or to the District Collector before includingthe said land as the lands of Dargah. Therefore, question of issuingnotice to the government did not arise.

78. It was also argued that the bar of jurisdiction of the CivilCourt is not absolute and it is only confined to only those matters whichare required by the Tribunal to be decided under the 1995 Act. Thefinding of the High Court is contrary to the judgments in RameshGobindram and Anis Fatima Begum. It was averred that since theErrata notification was based upon fraud and forgery, it is in breach ofSections 4 and 5 of the 1995 Act. It is also violative of principles ofnatural justice and was without jurisdiction and therefore null and void.

79. The High Court has quoted the principles laid down by thisCourt to the effect that writ would lie even if there is an alternativeefficacious remedy if the impugned action is in breach of natural justiceor the action is patently erroneous and ex facie without jurisdiction.However, the said principle was not applied in the writ petition beforethe High Court. challenge to the validity and legality of notification

Aissued by the Wakf Board is admittedly not matter which the WakfTribunal is required to determine under the 1995 Act. Reliance has beenplaced upon Harbans Lal Sahnia v. Indian Oil Corp.[42], RadhaKrishan Industries v. State of Himachal Pradesh[43] and Bal Krishnav. Union of India & Anr.[44]

B80. It was further contended that Manikonda village land wasjagir land and subsequent to the commencement of Abolition Regulation,the conditional grants made in favour of the temples, mosques or anyother institution established for religious and pious purposes whichincludes Dargah, stood abolished. The order of the Nazim Atiyat itselfstated that the Mashrut-ul-Khidmat grant would be subject to theCprovisions of Abolition Regulation. As per the order passed by the NazimAtiyat, the commutation amount has been paid to the heirs of the Jagirdaras per the Commutation Award dated 5.6.1959. Therefore, the order ofthe High Court is not sustainable and the appeals deserved to be allowed.

81. In respect of Maulana Azad National Urdu University, it wasDsubmitted that the 200 acres of land out of 1654 acres of land wasallotted to the University vide order dated 18.03.1998. The appellant is aCentral University established by an Act of Parliament. The possessionof the land was handed over to the University on 23.07.1998. TheUniversity is offering 71 programmes, 19 Departments at under Graduate,EGraduate, Post Graduate and Ph.D. levels and 6 Research/TrainingCentres which has more than 5000 students enrolled. Therefore, theallotment made to the appellant suffers from gross delay and laches.

H. Arguments of the Respondents

82. Mr. Huzefa A. Ahmadi, learned senior counsel appearing forFthe Wakf Board inter alia contended that the question raised by theappellants whether the subject land is Wakf property and whether thesaid property has been wrongly included in the list of Wakfs falls withinthe exclusive jurisdiction of the Wakf Tribunal relying upon Sections 6, 7,83, 85 and 88 of the 1995 Act. The intention of the legislature is evidentGfrom the scheme of the Act. The reference is made to the judgmentsreported as Rajasthan Wakf Board v. Devki Nandan Pathak & Ors.;Haryana Wakf Board v. Mahesh Kumar; Board of Wakf, West

42 (2003) 2 SCC 10743 (2021) 6 SCALE 78H44 (2020) 2 SCC 442

Bengal & Anr. v. Anis Fatma Begum & Anr.; Punjab Wakf Board v.Sham Singh Harike; Telangana State Wakf Board & Anr. v.Mohamed Muzafar; and Rashid Wali Beg v. Farid Pindari & Ors..[45]in support of such argument.

83. It was also submitted that the question as to whether particularproperty is Wakf property or not cannot be decided in writ jurisdictionin view of the judgment of this Court in Anis Fatma Begum & Anr. Itwas contended that the writ court does not decide the question of titlewhich is disputed question of fact. Reference was made to the judgmentsreported as Union of India v. T.R. Varma and Union of India & Ors.v. Ghaus Mohammad.[46]. It was stated that such questions have beenexclusively included in the domain of jurisdiction of the Wakf Tribunalunder the Act.

84. On merits, it was argued that the order passed by the NazimAtiyat on 31.5.1957 has recorded the following findings:

i.Manikonda village was in the list of exempted jagirs.

ii.The Second Taluqdar in his opinion had stated that VillageManikonda may be continued in the name of Akbar Hussainisubject to the service of the Dargah. This opinion wasconfirmed by the First Taluqdar.

iii.Manikonda Village was Mashrut Atiya Shahi grant forEthe service of the Dargah.

iv.While passing the final order in respect of all the villages,the Village Manikonda and Guntapally were not madesubject to Abolition of Inams Act, as was done in respectof the other villages.

85. Subsequently, in writ petition, the High Court in its orderdated 14.12.1961 held that Manikonda and Guntapally Villages wereconditional service grants in favour of the Dargah. It was thus arguedthat once Manikonda village has been held to be Mashrut ul Khidmat,i.e.,a conditional grant for the service of Dargah, it falls within the definitionof Wakf. Further, the order of the Chief Minister dated May 29, 1956only releases Manikonda village from the supervision of the Court of

45 (2017) 14 SCC 561;(2014) 16 SCC 45;(2010) 14 SCC 588; (2019) 4 SCC 698; (2021)

9 SCC 179; and2021 SCC OnLine SC 1003.

46 AIR 1961 SC 744

AWards and places it with the Government as an interim arrangementuntil the Atiyat Court decides the matter. The said order notes the factthat the properties in question (which includes Manikonda Village) weremeant for service of the Dargah. It wassubmitted that MohammedanLaw of Wakf owes its origin to rule laid down by the Prophet andmeans “tying up of property in the ownership of God Almighty and theBdevotion of the profits for the benefit of human beings”. The referencewas made to the judgment reported as Nawab Zain Yar Jung (sincedeceased) & Ors. v. Director of Endowments & Anr.[47], wherein it isheld that once founder dedicates property for wakf, the ownershipof the founder is completely extinguished. Thus, once it is declared thatCa particular property is wakf or any such expression is used implyingwakf or the document shows that there is dedication for pious orcharitable or religious purpose, the right of the person dedicating theproperty is extinguished and the ownership is transferred to the Almighty.A Mutawalli is appointed thereafter as manager of the wakf. Thoughmutawalli is the administrator, governor, superintendent or curator of theDwakf property, he has no right in the property belonging to the wakf. Thededication of property as Wakf need not specifically be in favour of aplace of worship, khankah, Dargah, cemetery etc. It is enough if thededication is made for the purpose recognised by Muslim law as pious,charitable or religious. Service inam granted to individuals tasked withEservice for purposes which are pious, religious or charitable, meets all thenecessary ingredients of wakf. Even if the grant of land is for renderingservices to the wakf, that itself is sufficient proof of dedication of suchland as wakf. When once the property is held to be wakf, it always retainsits character as wakf and the grant of patta to service inamdars andpersons in possession does not in any manner change its character. InFcase where the inam is for rendering services in connection with pious,religious and charitable purpose, then the holder of the inam responsiblefor performing the services does not acquire title to that property. If theland is resumed from such inamdar for non-performance of service and isre-granted to another person, it only means that the management of theGwakf is entrusted to another individual to perform service.

86. Mr. Ahmadi further relied upon an order of the Andhra PradeshHigh Court in R. Doraswamy Reddy v. The Board of Wakf A.P.Hyderabad rep. by its Secretary[48] holding that service inam could be

47 AIR 1963 SC 985H48 1978 SCC OnLine AP 117

Wakf. Mr. Ahmadi further relied upon another judgment reported asSayyed Ali & Ors. v. A.P. Wakf Board, Hyderabad & Ors.[49] where aquestion arose whether property which had been originally endowedby the Nizam of Hyderabad for support and the services of Dargahwould lose the character of being Wakf property once patta was grantedin favour of Mokhasadars under the Iman Abolition Act. Thus, it wasargued that since the Manikonda lands fulfilled the criteria for creationof Wakf under Muslim law as Mashrut Atiya Shahi, and that thevillage was being used to bear the expenses for the maintenance of theDargah and for celebration of the annual urs, the dedication was for apurpose recognised by Muslim Law as pious, religious or charitable.87. It was further submitted that Mashrut ul khidmat has beenrecognized as pious, religious and charitable purpose even before the1954 Act was amended in 1964. It was further argued that the facts ofthe present case and also the order of the Atiyat Court would demonstratethat the land in question was used ever since the issuance of the Farmanfrom times immemorial for performance of oodh u gul and the festivalof urs at the Dargah. The said service of the Dargah and meeting of theexpenses of urs, flowers etc. have been carried on for almost over acentury since the issuance of the Farman. It was argued that withoutprejudice to what is argued above, even without formal dedication ofthe property, usage of the property for religious purpose would clothethe same into the nature of Wakf within the meaning of the 1954 and1995 Act.

88. It was argued that the submission of the State Government tothe effect that no Wakf was created as there was no permanent dedicationsince title did not pass is ex facie incorrect and misconceived. Firstly,the said submission proceeds on the incorrect premise that the grant ofjagirs does not vest title. Referring to the Report of the Royal Commissionon Jagir Administration and Reforms, prior to the promulgation of theAndhra Pradesh (Telangana Area) (Abolition of Jagirs) Regulation, 1358F,there were several different categories of jagirs, some permanent andsome temporary. There was nothing to show that Manikonda jagir wastemporary. Hence, this being disputed question of fact could only bedetermined by the Wakf Tribunal. Secondly, the terms of the grant andits nature, whether permanent or temporary, could only be deduced uponthe interpretation of the original Farman which would have to be

Asummoned from the government archives. Thirdly, it was submitted thatwithout prejudice to what has been stated above, the entire premise ofthe argument that formal title must pass to create permanent dedicationis misconceived. Even in service inams formal title remains with theGovernment. This Court has interpreted such inams with condition ofservice to be Wakfs. Since the permanency of dedication constituting aBWakf exists in relation to the service and the interest in the land, it becomesa Wakf, even if formal title does not pass. In the present case, there isnothing to show that the original Farman which made the dedication forcondition of service was not permanent. In fact, the narrative given bythe Atiyat Court suggests otherwise.C89. It was also contended that the argument raised by the appellantsthat since the Atiyat Court did not have jurisdiction to decide the title ofthe property as it was only empowered to decide the amount ofcommutation payable, therefore the observation that the Manikonda landswere Mashrut Atiya Shahi grant for the service of the Dargah ought toDbe ignored. In this regard, it is relevant to mention that the Manikondalands have not become Wakf property by virtue of the order of theAtiyat Court, but by virtue of the original grant by the Farman. Theorder of the Atiyat Court merely reiterates that position and makes anobservation as to the nature of the property which has never beencontested. Further, if the order dated May 31, 1957 is perused, the issueEbefore the Atiyat Court was that whether the 5 villages mentioned in theorder were Mashrut or Zar-Khareed, i.e., conditional service grant forthe Dargah or self-acquired property. In this respect, it was held that theManikonda land was Mashrut Atiya Shahi grant for the service of theDargah. This finding was affirmed by the High Court by virtue of itsForder dated December 14, 1961. The State Government was party atboth stages as it was represented by government pleader. No objectionswere raised as to the said factual position or as to the jurisdiction of theAtiyat Court. In fact, in the Writ Petition filed by the State, it has beenadmitted that the grant was treated as Mashrut ul Khidmat grant. Insuch circumstances, the findings having attained finality cannot now beGallowed to be re-opened or challenged on the basis of an allegedjurisdictional error. This position is further but tressed by perusal ofSection 13 of the Atiyat Enquiries Act, 1952 where finality is attached tothe orders passed by the Atiyat Court.

90. Mr. Ahmadi has further submitted that Manikonda VillageHwas not jagir within the meaning of the Abolition Regulation as the

Jagir in terms of Section 2(f) of the Abolition Regulation does not includeMashrut ul Khidmat though it includes several other types of jagirs likepaigah, agrahar, umli etc. It was argued that the Report of RoyalCommission on Jagir Administration and Reforms mentions aboutconditional grants and certain other jagirs which were permanently givento the grantee. The Commission had recommended that jagirs intendedfor religious service should not be resumed. It was further argued thatthe vesting of jagirs in the government was not automatic in terms ofRegulation No. 5 of the Abolition Regulation but different dates for differentjagirs were to be notified. No notification pertaining to Manikonda Villagehas been brought on record to show that the Government notified anappointed date for vesting of the Manikonda Village in the Government.Still further, the Commutation Award dated June 5, 1959 does not showany payment made to the Dargah as stipulated under Regulation No. 10of the Commutation Regulation. It was submitted that the words, jagir,inam, etc. have been interchangeably used in the present matter, howeverwhat is important is that the land in question has been recognised as agrant for the service of the Dargah, which is Wakf and would continueto be Wakf, despite abolition of jagirs.91. It is submitted that the second survey could be conducted as20 years had passed from the date of first survey and that the WakfBoard had the powers to summon the report concerning ManikondaVillage from the Survey Commissioner under Section 105 of the 1995Act. It was also submitted that the Wakf Board has the power to issuethe Errata notification and Manikonda Village has been correctly includedin the list of Wakf properties as the Wakf Board has the power to collectinformation regarding any property which it has the reason to believewas Wakf property. It was argued that Sections 4 and 5 form onegroup whereas Section 32 grants power of general superintendence ofall Wakfs on the Wakf Board. Section 32(2)(n) specifically enumeratesthe power of the Wakf Board to investigate and determine the natureand extent of Wakf property. Such power is unilateral and notadjudicatory, where the Wakf Board is empowered to conduct its owninvestigation and determine the nature and extent of Wakf property.Hence, the Board exercises administrative powers under Section 32(2)(n)of the 1995 Act. Reference was made to the judgment reported as A.P.A. Rasheed v. N.N. Khalid Haji & Anr.,[50 ]of the Kerala High Court. It

Awas argued that the scope of the words “investigate and determine”under Section 32(2)(n) is an independent discernment by the Wakf Board,without requiring the interested persons to be made part of the process.Reliance has been placed upon the judgment Attorney General v.Hughes[51]. The Wakf Board has power to decide if property is Wakfproperty or not under Section 40 and the said action of the Wakf BoardBis subject to the decision of the Wakf Tribunal. Such inquiry is notadjudicatory but contemplates inquiries in the course of examination ofthe records of particular Wakf and the dedications of property made tosuch Wakfs. It was pointed out that sub-sections (3) and (4) of Section40 relate to the properties which are either registered as property ofCany Trust or Society. The Wakf Board is empowered to conduct anInquiry and if it is satisfied that the property is Wakf property, it willcall upon the concerned Trust/Society to show cause as to why suchproperty should not be registered as Wakf property. Thus, prior notice isnecessary to the registering authority in such situation contemplated bysub-sections (3) and (4) of Section 40 only. Reliance was placed upon aDjudgment of the Calcutta High Court in the case of Amjad Ali Mirza &Ors. v. Board of Wakfs & Ors.[52]. It was argued that the power ofWakf Board to collect information regarding any property which it hasreason to believe to be wakf property is not subordinate to the power ofthe State Government to get survey conducted under Sections 4 to 6Eof the 1995 Act. It was argued that in view of the inherent power of theWakf Board to issue Errata notification, it cannot be rendered nugatorymerely because it has not been issued as per the provisions of Sections4 to 6 of the 1995 Act. Thus, it was contended that issuance of Erratanotification could be traced to Section 32(2)(n) as well as under SectionF40(1) of the 1995 Act.

92. Mr. Ahmadi has relied upon judgments of this Court reportedas T.N. Wakf Board v. Hathija Ammal (Dead) by LRs & Ors.,[53] andMadanuri Sri Rama Chandra Murthy v. Syed Jalal,[54 ]dealing withparimateria provisions contained in Section 27 of the 1954 Act to SectionG40 of the 1995 Act. Hence, the Wakf Board derived its power to includesuch property in the list of wakfs either under Sections 4 to 6 or Sections

51 (1899) 48 Weekly Reporter 150

52 C.O. No. 749 of 2018 decided on 20.2.2019

53 (2001) 8 SCC 528H54 (2017) 13 SCC 174

30 or 40 of the Act. Mr. Ahmadi has referred to the following material toconclude that the Manikonda Village was Wakf property.

“a)The Manikonda village was service grant for the Dargah.b)In Sayyed Ali (supra), this Hon ‘ble Court has held that agrant along with service to Dargah is Wakf and wouldBremain as wakf irrespective of the Abolition Regulations.

c)In any event, as per the order of the Atiyat Court, theManikonda village was Mashrut Atiya Shahi grant for theservice of the Dargah. This is also apparent from theMuntakhab issued by the Atiyat Court.

d)Thus, the Manikonda village was Masl, root ul Khidmat,which fell within the purview of the definition of Wakfunder the 1954 act and has been specifically included withinthe definition of wakf since 1964.

e)The genesis of the fact that Manikonda lands were Wakflands can be traced to the first survey report, wherein, inthe remarks column it has been noted as follows:-

“The Dargah is looked after by the Mutawalli in the pa.stthe jagirs of Manikonda Dargah Hussain Shah Valli andGunthapalli were given for the functioning of the Dargahand annual urs. The particulars of the compensationreceived now by the mutawalli are not known”

93. It was submitted that while issuing the Errata notification, theWakf Board took notice of the following documents:

“i.The Shahi Firmanii.The orders of the then Chief Minister, First Taluqdar, SecondTaluqdar and other Officers.

iii.The order of Nazim Atiyat dated 31.5.1957 as well as24.09.1958 (rejecting the review petition)

iv.The order of the Board of Revenue dated 14.11.1959

v.The order of the Hon’ble High Court in Writ Petition No.666 of 1959

vi.The Muntakhab No. 98 issued by the Nazim Atiyat on26.11.1958

1304SUPREME COURT REPORTS

Avii.The Report of the First Survey which mentioned in theremarks column that Manikonda and Guntapalli were allottedto the Dargah for rendering services to the institution.”

94. It was further argued that the State Government herein ischallenging notification issued in the State Gazette to contend thatBthere is dispute between the Revenue Department of the State whichis claiming that the subject lands are jagir lands whereas the MinoritiesWelfare Department is of the view that the subject lands are the Wakfproperties. Reference was made to judgment of this Court reported asChief Conservator of Forests, Govt. of A.P. v. Collector & Ors.,[55 ]tomake out strong case of setting up of similar committees by the StateCGovernments to resolve the controversy arising between variousdepartments of the State or the State and any of its undertakings. Itwould be appropriate for the State Governments to set up committeeconsisting of the Chief Secretary of the State, the Secretaries of theconcerned departments, the Secretary of Law and where financialDcommitments are involved, the Secretary of Finance. The decision takenby such committee shall be binding on all the departments.

95. Mr. Ahmadi rebutted the arguments raised by Mr. Giri thatthe State Government is precluded from invoking the jurisdiction of theTribunal as the State Government is party in the suit filed in the yearE2007. It was stated that the Government could always approach theTribunal under Section 6 or under Section 83 of the 1995 Act.

96. Mr. Ahmadi referred to an order passed by this Court on May8, 2012 and July 26, 2013 to contend that such orders do not foreclosethe right of the Board to recover Wakf lands. However, referring to aFjudgment of this Court reported as K.B. Ramachandra Raje Urs (Dead)by Legal Representatives v. State of Karnataka & Ors.[56], Mr. Ahmadihas submitted that once it is determined that the possession of the propertyis contrary to law, the normal relief is to hand over the possession of theentire land to the rightful owner but if construction has been carried outon part of the land, the rightful owner becomes entitled to receiveGcompensation in terms of the market value of the land which has beenutilized for construction and is entitled to recover possession of theremaining part of the land which is vacant. It was further pointed outthat the Government illegally allotted 1226 acres and 29 guntas to various

55 (2003) 3 SCC 472H56 (2016) 3 SCC 422

parties out of which allotees have utilized 818 acres and 9 guntas. Thus,428 acres and 3 guntas of land is stilllying vacant. The total area whichis lying vacant and which belongs to the Wakf thus comes out to be 836acres and 23 guntas. Hence, direction has been sought from this Courtto direct the Wakf Tribunal to order the appellants in all the matters tohandover possession of the vacant part of the property and to paycompensation to the Wakf Board at the market value for the part of theproperty utilized in construction.

97. In respect of invocation of writ jurisdiction of this Court, itwas contended that the facts of the present case are disputed andcontentious. It is well settled that the disputed question of facts cannotbe decided in Writ Jurisdiction especially when the Act gives exclusivejurisdiction to the Wakf Tribunal to decide such questions.

98. Moreover, it was argued that Mashrut Ul Khidmat land isspecifically excluded from the purview of “Endowment Regulations”. Ithas to be treated as endowed in terms of Regulation 447. It was submittedthat grant of condition of service to non-religious institution is not treatedas endowment whereas grant made to religious institution could beconsidered as endowment. Thus, conditional grant for service of Dargahwas an endowment.

99. In the written submissions filed on behalf of Dargah, it wassubmitted that the Wakf Tribunal should be allowed to proceed with thesuit and that 1204 acres have been allotted and built upon whilst the restof the land admeasuring 450 acres is still untouched. The Farman dated1[st] Ramzan[57], 1333 A.H. (July 13, 1915) wherein the Nizam has releasedthe grant in favour of Akbar Hussaini, son of Safiullah Hussaini with thedirection that the inam and succession Inquiries should be sorted out.The said issue was decided by the Atiyat Court. The Muntakhab datedNovember 26, 1958 drawn up after the order the Atiyat Court mentionsthat the Village Manikonda is crown grant with items of income includingexcise, as conditional service grant of Dargah. Columns 6 and 7 wouldshow that total extent of 1898 acres and 18 guntas in Manikonda Villagewas given as conditional service grant to the Dargah. As per the practiceof the ‘Suls-e-Sulsan’, Saifullah Hussainias Sajjada was to get 2/3[rd] andthe balance 1/3[rd ]was to be given to the family. Such fact was an inputfor the decision of the Wakf Board under Section 40 of the 1995 Act.

AThe Wakf Board could have arrived at the decision independently. Sinceno question arose about the property being wakf, no further inquiry orproceedings were necessary. The Survey Report format is under theauthority of the Government and, therefore, cannot be taken to be anindependent exercise of the Wakf Board. It was further submitted thatthe Errata notification is issued under the authority of the Government.BIt was submitted that Inam means grant of rent-free land which washereditable and for perpetual occupation. Inams were categorized as(a) Sanadi Inam and (b) Gaonnisbat Inam. Sanadi Inam was grantfrom the ruling power of the time of grant free from all Governmentexactions, in perpetuity whereas Gaonnisbat Inam was land granted rentCfree by the village of its own. Jagir means grant of land made by theGovernment to an individual as reward for special service. It was thusargued that in deciding the wakf character of the Dargah property, theconcept of Jagir and the Jagir Abolition Regulation as also the conceptof an Inam and the Inam Abolition Regulation need to be carefullyexamined as the documents produced have mentioned Jagir village, InamDlands, Mashrut-ul-Khidmat, Crown grant, Jagir conditional on service,exempted Jagir, etc. Both statutes have special provisions for religiousand charitable institutions. It was argued that the Commutation Awarddated 5.6.1959 was provisional and does not clearly indicate the amountspayable in terms of Regulation 10 which provides 90% of the revenue toEbe made over to the religious institution. It was submitted that the uniqueconcept of wakf including permanent dedication to the Almighty has tobe kept in mind. Recent legislative clarifications have made Mashrut-ul-Khidmat part of the definition of wakf. Wakf is different from trustwhere the legal title of property is held by the trustee but the beneficialtitle in equity is held by the beneficiary. Furthermore, wakf can be byFuser in the absence of deed or declaration and once property isconsidered wakf property it remains forever as wakf property.

100. Mr. Nakul Dewan inter alia raised the argument that evenif, arguendo, principles of natural justice have been violated, the jurisdictionof the Wakf Tribunal is not ousted. It was further argued that SectionG13(2) of the Enquires Act gives finality to an order passed therein.

101. It was argued that the core issue in dispute touches upon thecharacter of the land and cannot be determined by the writ court. Thatis because, in nutshell, for the Appellants to succeed, it needs to beproved that the Dargah does not have title on the land. However, suchHquestion cannot be comprehensively determined by Court exercising

writ jurisdiction under Article 226 of the Constitution because there aredisputed questions of fact and final binding judgement of the AtiyatCourt passed on 31 May 1957, which has confirmed that the land wasgranted for religious and pious purpose under Muslim law.

102. It was further argued that the land was conditional grantfor the service of Dargah and would continue to remain Wakf. InMuntakhab No. 98 issued in the year 1958, the Nazim Atiyat hasmentioned the grant of Jagir village Manikonda as crown grant. In termsof Section 13 of the Enquiries Act, the orders passed in cases relating toAtiyat Grants shall not be questioned in any Court of law. It was furtherargued that the Wakf Tribunal has been statutorily conferred withexclusive jurisdiction to deal with the question as to whether the landwas wakf property or not. The final determination as whether or notthe appellants have been able to make out their principal case that theland is not wakf land, the seven issues were suggested. Thus, thediscretion exercised by the High Court to direct all issues to be determinedby the Wakf Tribunal does not require any interference by this Court.103. It was also argued that the judgment in WhirlpoolCorporation v. Registrar of Trade Marks, Mumbai & Ors.[58] isdistinguishable as the High Court can decline to exercise its jurisdictionif it is satisfied that an aggrieved party can obtain relief before analternative forum. Reference was made to judgment of this Courtreported as Commissioner of Income Tax & Ors. v. Chhabil DassAgarwal[59]. In Whirlpool, the High Court relegated the parties to thestatutory forum without examining the contention but in the present case,the High Court after detailed examination, eventually declined to exercisejurisdiction under Article 226 of the Constitution in view of the alternatestatutory remedy available to the parties.

I. Issues to be determined in the present Appeals

104. We have heard learned counsels appearing for the parties atlength over few days wherein the detailed arguments were addressed,many documents were referred to and the partiesalso submitted thewritten submissions. We find that the following questions arise forconsideration by this Court, including the questions suggested by Mr.Nakul Dewan:

58 (1998) 8 SCC 1

59 (2014) 1 SCC 603

A“(1)Whether the High Court was justified in relegating theparties to the remedy before the Wakf Tribunal?

(2)Whether the Government was entitled to dispute the validityof errata notification before the Writ Court under Article226 of the Constitution?

(3)Whether the State is estopped to challenge the notificationinter-alia on the ground that Government Pleader waspresent before the Nazim Atiyat and before the High Courtin proceedings against the order passed by Nazim Atiyatand that the notification was published in State GovernmentCGazette?

(4)Whether the notification published at the instance of WakfBoard is in exercise of power conferred under Section 32read with Section 40 of the 1995 Act?

(5)Whether the second survey report and/or the order of theDAtiyat Court could be said to be sufficient material withthe Wakf Board to publish the impugned Erratanotificationin exercise of powers vested in Section 5 ofthe 1995 Act?

(6)Whether the order of the Atiyat Court deals with theEquestion of succession to receive grants or it is relevant todetermine the nature of grantas conditional grant for theservice of the Dargah?

(7)Whether the land in question is Mashrut-ul-Khidmat landand thus would continue to be wakf land even though, theFJagir of the village was abolished or that the Land vested inthe State under Abolition Regulations or the CommutationRegulations or under the Iman Abolition Act?

(8)Whether, in the event the errata notification is held valid,the Dargah would be entitled to recover possession of theGLand or alternatively, whether the Respondents are entitledto recover possession of all vacant portions of the Landand are entitled to compensation in respect of thoseportions of the Land on which construction has been carriedout?”

1. Whether the High Court was justified in relegating theparties to the remedy before the Wakf Tribunal?

105. The High Court in its detailed order has discussed theprovisions of law and the documents referred to by the parties. Thefindings recorded are indicative of the fact that the High Court had notagreed with the arguments raised on behalf of the State which is apparentfrom the fact that the Writ Petition No. 23578 of 2007 filed by the Stateand the Corporation was dismissed. Before dismissing the writ petitionfiled by the State and other aggrieved parties, the High Court did notagree with the arguments advanced by the learned Advocate Generalthat on payment of commutation amount in terms of the Abolition andCommutation Regulations, Mashrut-ul-Khidmat stood reversed and vestedin the Sovereign. Therefore, the presumption that the title to the tract ofthe land in the territory always vested in the Sovereign is not attracted.Though the said finding is said to be prima facie, but having discussedthe provisions of the statute, the High Court has in fact returned thefinding against the State. Still further, referring to various documentsrelied upon by the parties, the High Court found that the documentsproduced needed to be clarified and explained by whichever party whowas relying on them. deeper probe in relation to the contemporaneouscircumstances was required to be made and the contextual events ofthe period when the ancient documents came into existence wererequired to be examined, may be by oral or other documentary evidence.On perusal of the various documents produced by the parties, the HighCourt held that it wasnot possible at all to countenance submission of theAdvocate General that the subject land is not Wakf and it was takenover by the Government on abolition of jagirs (Paras 35- 38). Such findingcoupled with the conclusion of dismissing the writ petitions shows thatthe High Court did not find any merit in the writ petition filed by theState, though the High Court was conscious of the fact that interpretationof documents was required to be made.

106. Mr. Ahmadi while raising an argument that there is analternative efficacious remedy available to the State to seek adjudicationfrom the Wakf Tribunal, was candid enough to say that the jurisdictionof the Writ Court cannot be said to be barred. It was argued that sincedisputed question of facts arosefor consideration, therefore Writ Courtwas not the appropriate forum to decide the disputed question of facts.Mr. Ahmadi relied upon the judgments as mentioned in para 85 forsupporting such averment.

A107. In K.K. Kochunni’s case, the Constitutional Bench held thatmere existence of an adequate alternative legal remedy cannot per sebe good and sufficient ground for throwing out petition under Article32, if the existence of fundamental right and breach - actual orthreatened, is alleged and is prima facie established by the petition. ItBwas case where the constitutionality of an Act was challenged asviolative of Article 19(1)(f) or Article 31(1) of the Constitution. TheCourt held as under:

“12. In other words he maintains that nobody has the fundamentalright that this Court must entertain his petition or decide the sameCwhen disputed questions of fact arise in the case. We do not thinkthat that is correct approach to the question. Clause (2) of Article32 confers power on this Court to issue directions or orders orwrits of various kinds referred to therein. This Court may say thatany particular writ asked for is or is not appropriate or it may saythat the petitioner has not established any fundamental right orDany breach thereof and accordingly dismiss the petition. In bothcases this Court decides the petition on merits. But we do notcountenance the proposition that, on an application under Article32, this Court may decline to entertain the same on the simpleground that it involves the determination of disputed questions ofEfact or on any other ground.”

108. In Rashid Wali Beg, this Court examined all the previousjudgments on the question as to whether any property is wakf propertyor not is triable exclusively by the Wakf Tribunal but the judgmentsdiscussed therein pertained to the invocation of the jurisdiction of theFCivil Court or of the Wakf Tribunal. None of the judgments dealt withthe invocation of the jurisdiction of the writ court. Anis Fatima Begum,is again not judgment arising out of writ petition filed before theHigh Court. It was case of suit filed before the Civil Court, thoughin para 7, there is an observation that all matters pertaining to wakfGshould be filed in the first instance before the Tribunal and should notbe entertained by the Civil Court or by the High Court straightawayunder Article 226 of the Constitution. The observation made by thisCourt in respect of invocation of the jurisdiction of the writ court isclearly obiter as that was not the question arising for consideration. Athree judge Bench of this Court in Director of Settlements, A.P. &H

Ors. v. M.R. Apparao & nr.[60 ]held that “A judgment of the Courthas to be read in the context of questions which arose for considerationin the case in which the judgment was delivered. An “obiter dictum”as distinguished from ratio decidendi is an observation by the Courton legal question suggested in case before it but not arising in suchmanner as to require decision. Such an obiter may not have bindingprecedent as the observation was unnecessary for the decisionpronounced, but even though an obiter may not have binding effectas precedent, but it cannot be denied that it is of considerable weight.”Thus, judgment is binding precedent on the question which arisesfor consideration and not otherwise.

109. The judgment in T.R. Varma arises out of an order ofdismissal of government servant under Article 311(2) of the Constitution.It was in these circumstances, it was held that person who alleges thathis services have been wrongfully terminated is entitled to institute anyaction to vindicate his rights, and in such an action, the Court would becompetent to award all the reliefs to which he may be entitled to, includingsome which would not be admissible in the writ petition. Further, GhausMohammad was case wherein an order passed against the respondentunder the Foreigners Act, 1946 was set aside by the High Court. However,these judgments are not indicative of the fact that disputed questions offact cannot be adjudicated upon in the writ petition under Article 226 ofthe Constitution of India.110. In Committee of Management, the refusal to grant approvalto the proposal of the Managing Committee of the appellant of removalof member of the teaching faculty was challenged by way of writpetition before the High Court. The petition was dismissed in view of analternative remedy availablewith the appellant. This Court held that it isbeyond any doubt or dispute that availability of an alternative remedy byitself may not be ground for the High Court to refuse to exercise itsjurisdiction. It was held that the High Court may exercise its writjurisdiction despite the fact that an alternative remedy is available, interalia, in case where the same would not be an efficacious one. It washeld that in the case of this nature, where the appellant not only questionedthe validity of the Act but also alleged commission of jurisdictional erroron the part of the Vice Chancellor in implementing the provisions of astatute, such being an intricate question should ordinarily fall fordetermination by the High Court itself.

A111. In Alka Subhash Gadia (Smt), it was held that there is adifference between existence of power and its exercise. The powersunder Articles 226 and 32 are wide and unimpeded by any externalrestrictions and can reach any executive order resulting in civil or criminalconsequences. The Courts have over the years evolved certain self-restraints for exercising these powers in the interest of administration ofBjustice and for better, more efficient and informed exercise of the saidpowers.

112. In Whirlpool Corporation, dispute was pertaining toregistration of the Trademarks. The appellant filed writ petitionchallenging suo motu action taken by the Registrar of the TrademarkCunder Section 56(4) of the Trade and Merchandise Marks Act, 1958.This Court held as under:

“14. The power to issue prerogative writs under Article 226 ofthe Constitution is plenary in nature and is not limited by any otherprovision of the Constitution. This power can be exercised by theDHigh Court not only for issuing writs in the nature of habeas corpus,mandamus, prohibition, quo warranto and certiorari for theenforcement of any of the Fundamental Rights contained in PartIII of the Constitution but also for “any other purpose.

15. Under Article 226 of the Constitution, the High Court, havingEregard to the facts of the case, has discretion to entertain or notto entertain writ petition. But the High Court has imposed uponitself certain restrictions one of which is that if an effective andefficacious remedy is available, the High Court would not normallyexercise its jurisdiction. But the alternative remedy has beenconsistently held by this Court not to operate as bar in at leastFthree contingencies, namely, where the writ petition has been filedfor the enforcement of any of the Fundamental Rights or wherethere has been violation of the principle of natural justice orwhere the order or proceedings are wholly without jurisdiction orthe vires of an Act is challenged. There is plethora of case-lawGon this point but to cut down this circle of forensic whirlpool, wewould rely on some old decisions of the evolutionary era of theconstitutional law as they still hold the field.

xxxxxx

xxx

20. Much water has since flown under the bridge, but there hasbeen no corrosive effect on these decisions which, though old,

continue to hold the field with the result that law as to thejurisdiction of the High Court in entertaining writ petition underArticle 226 of the Constitution, in spite of the alternative statutoryremedies, is not affected, specially in case where the authorityagainst whom the writ is filed is shown to have had no jurisdictionor had purported to usurp jurisdiction without any legal foundation.”

113. We do not find any merit in the arguments raised by Mr.Dewan that the judgment in Whirlpool is distinguishable. In fact, thisCourt in appeal against the order of the High Court set aside the noticeissued by the Registrar of the Trademarks.The triple test reiterated bythis Court are where the writ petition has been filed for the enforcementof any of the fundamental rights or where there has been violation ofthe principles of natural justice or where the order or proceedings arewholly without jurisdiction or when the vires of an Act is challenged.Thus, the order of the Registrar was set aside in writ petition.

114. The judgment in Balkrishna Ram is in respect of transferof an intra-court appeal to the Armed Forces Tribunal against an orderpassed by the learned Single Bench of the High Court. Since similarquestion is not arising in the present appeal, we do not find any help canbe taken by the learned counsel for the appellant on the aforesaidjudgment.

115. three-judge bench in judgment reported as BabubhaiMuljibhai Patel v. Nandlal Khodidas Barot and Others[61], held thatthe High Court is not deprived of its jurisdiction to entertain petitionunder Article 226 merely because in considering the petitioner’s right ofrelief, questions of fact may fall to be determined. In petition underArticle 226, the High Court has jurisdiction to try issues both of fact andlaw. It was held as under:

“9. ……. writ petition under Article 226, it needs to beemphasised, is essentially different from suit and it would beincorrect to assimilate and incorporate the procedure of suit intothe proceedings of petition under Article 226. The High Court isnot deprived of its jurisdiction to entertain petition under Article226 merely because in considering the petitioner’s right of relief,questions of fact may fall to be determined. In petition underArticle 226 the High Court has jurisdiction to try issues both of

Afact and law. Exercise of the jurisdiction is no doubt discretionary,but the discretion must be exercised on sound judicial principles.When the petition raises complex questions of fact, which mayfor their determination require oral evidence to be taken, and onthat account the High Court is of the view that the dispute shouldnot appropriately be tried in writ petition, the High Court mayBdecline to try petition ……..”

116. This Court in judgment reported as Radha KrishanIndustries v. State of H.P.[62 ]examined the question of maintainability ofa writ petition before the High Court even when there was an alternativeremedy available under the Goods and Services Tax Act, 2017. ThisCCourt held as under:

“25. In this background, it becomes necessary for this Court, todwell on the “rule of alternate remedy” and its judicial exposition.In Whirlpool Corpn. v. Registrar of Trade Marks [WhirlpoolCorpn. v. Registrar of Trade Marks, (1998) 8 SCC 1], two-DJudge Bench of this Court after reviewing the case law on thispoint, noted : (SCC pp. 9-10, paras 14-15)

“”……………………………

27. The principles of law which emerge are that:

27.1. The power under Article 226 of the Constitution to issueEwrits can be exercised not only for the enforcement of fundamentalrights, but for any other purpose as well.

27.3. Exceptions to the rule of alternate remedy arise where: (a)the writ petition has been filed for the enforcement of afundamental right protected by Part III of the Constitution; (b)Fthere has been violation of the principles of natural justice; (c)the order or proceedings are wholly without jurisdiction; or (d)the vires of legislation is challenged.

27.4. An alternate remedy by itself does not divest the High Courtof its powers under Article 226 of the Constitution in an appropriateGcase though ordinarily, writ petition should not be entertainedwhen an efficacious alternate remedy is provided by law.

27.5. When right is created by statute, which itself prescribesthe remedy or procedure for enforcing the right or liability, resort

must be had to that particular statutory remedy before invokingthe discretionary remedy under Article 226 of the Constitution.This rule of exhaustion of statutory remedies is rule of policy,convenience and discretion.

27.6. In cases where there are disputed questions of fact, theHigh Court may decide to decline jurisdiction in writ petition.However, if the High Court is objectively of the view that thenature of the controversy requires the exercise of its writjurisdiction, such view would not readily be interfered with.”

117. The reliance of Mr. Dewan on Chhabil Dass Agarwal isagain not tenable for the reason that challenge in the aforesaid appealwas to the quashing of notice for assessment under Section 148 of theIncome Tax Act. This Court held as under:

“12. The Constitution Benches of this Court in K.S. Rashid andSon v. Income Tax Investigation Commission [AIR 1954 SC 207],Sangram Singh v. Election Tribunal [AIR 1955 SC 425], Union ofIndia v. T.R. Varma [AIR 1957 SC 882], State of U.P. v. Mohd.Nooh [AIR1958 SC 86] and K.S. Venkataraman and Co. (P)Ltd. v. State of Madras [AIR 1966 SC 1089] have held that thoughArticle 226 confers very wide powers in the matter of issuingwrits on the High Court, the remedy of writ is absolutelydiscretionary in character. If the High Court is satisfied that theaggrieved party can have an adequate or suitable relief elsewhere,it can refuse to exercise its jurisdiction. The Court, in extraordinarycircumstances, may exercise the power if it comes to theconclusion that there has been breach of the principles of naturaljustice or the procedure required for decision has not been adopted.………”

118. It was found that the Income Tax Act provides completemachinery for assessment/reassessment of tax, imposition of penaltyand for obtaining relief in respect of any improper orders passed bythe Revenue Authorities. The remedy under the statute must be effectiveand not mere formality with no substantial relief. Having said so, thisCourt held that the Writ Court ought not to have entertain the writpetition filed by the assessee wherein the legality of the notice issuedunder Section 148 of the Income Tax Act alone was subject matter ofchallenge.

DEF

A119. We find that the High Court has examined the merits of thecontention raised including the documents filed so as not to accept thecontentions of the State. Though the High Court has expressed thesame to be prima facie view, but in fact, nothing was left to suggestthat it was not final order as far as the State is concerned with theorder of the dismissal of its writ petition. Even otherwise, we find thatBthe questions raised before this Court are the interpretation of thestatues, the Farmans issued by Sovereign from time to time and theinterpretation of the document to the facts of the present case. It is nota case where any oral evidence would be necessary or is availablenow. In fact, that was not even the suggestion before this Court. SinceCthe question was in respect of interpretation of the statutes and thedocuments primarily issued by the Sovereign, the matter needs to beexamined on merits as detailed arguments have been addressed bylearned counsel for the parties. Thus, we find that the High Courterred in law, in the facts and circumstances of the case, to relegate theparties to the statutory remedy.D2. Whether the Government was entitled to dispute thevalidity of Errata notification before the Writ Court under Article226 of the Constitution?

120. Admittedly, the Government is reflected as the owner of theEland in question since the year 1912-13. The Government has exercisedits rights of ownership as successor of the Sovereign. Consequent toAbolition Regulation and payment of commutation under theCommutation Regulation, the State Government had transferred land tothe Corporation. public notice was also issued to invite objections, ifany, to the allotment of the land but since none were received, theFCorporation made further allotment to various corporate entities. TheWakf Board is statutory authority established under the Act and is a“State” within the meaning of Article 12 of the Constitution. constitutionBench of this Court in judgment reported as Rajasthan State ElectricityBoard, Jaipur v. Mohan Lal & Ors[63 ]held “that the expression “otherGauthorities” in Article 12 will include all constitutional or statutoryauthorities on whom powers are conferred by law. It is not at all materialthat some of the powers conferred may be for the purpose of carryingon commercial activities”.

121. Similar view that an authority created by Statute is statewithin the meaning of Article 12 was considered in judgment reportedas “State of U.P. v. Neeraj Awasthi & Ors.”[64 ]when it was held thatthe U.P. Agricultural Produce Market Board constituted by statute“UP Krishi Utpadan Mandi Adhiniyam, 1964” is State within the meaningof Article 12 of the Constitution.

122. Since, the Wakf Board is state, it has act to act fairly andreasonably. This Court in judgment reported as Dwarkadas Marfatiaand Sons v. Board of Trustees of the Port of Bombay[65 ] held thatthe action of statutory authority must be reasonable and taken onlyupon lawful and relevant grounds of public interest. This Court held asunder:-

“25. Therefore, Mr Chinai was right in contending that every action/activity of the Bombay Port Trust which constituted “State” withinArticle 12 of the Constitution in respect of any right conferred orprivilege granted by any statute is subject to Article 14 and mustbe reasonable and taken only upon lawful and relevant grounds ofpublic interest. Reliance may be placed on the observations ofthis Court ……… . Where there is arbitrariness in State action,Article 14 springs in and judicial review strikes such an actiondown. Every action of the executive authority must be subject torule of law and must be informed by reason. So, whatever be theactivity of the public authority, it should meet the test of Article14. The observations in paras 101 and 102 of the Escorts case[(1986) 1 SCC 264 : 1985 Supp 3 SCR 909] read properly do notdetract from the aforesaid principles.”123. In another judgment reported as Shrilekha Vidyarthi(Kumari) v. State of U.P.[66], this Court held that the arbitrariness is thevery negation of the rule of law. Satisfaction of this basic test in everyState action is sine qua non to its validity. This Court held as under:-

“35. It is now too well settled that every State action, in order tosurvive, must not be susceptible to the vice of arbitrariness whichis the crux of Article 14 of the Constitution and basic to the rule oflaw, the system which governs us. Arbitrariness is the very negation

64 (2006) 1 SCC 66765 (1989) 3 SCC 29366 (1991) 1 SCC 212

Aof the rule of law. Satisfaction of this basic test in every Stateaction is sine qua non to its validity and in this respect, the Statecannot claim comparison with private individual even in the fieldof contract. This distinction between the State and privateindividual in the field of contract has to be borne in the mind”.

B124. In another judgment reported as M.J. Sivani and others v.State of Karnataka[67], this court held that fairplay and natural justiceare part of fair public administration; non-arbitrariness and absence ofdiscrimination are hallmarks for good governance under rule of law. Itwas held as under:-

C“31. It is settled law that every action of the State or aninstrumentality of State must be informed by reason. Actionsuninformed by reason may amount to arbitrary and liable to bequestioned under Article 226 or Article 32 of the Constitution.The action must be just, fair and reasonable. Rejection of theDlicence must be founded upon relevant grounds of public interest.Fairplay and natural justice are part of fair public administration;non-arbitrariness and absence of discrimination are hallmarks forgood governance under rule of law, therefore, when the State, itsdelegated authority or an instrumentality of the State or any personacts under statutory rule or by administrative discretion, whenEits actions or orders visit the citizen with civil consequences,fairness and justness require that in an appropriate case, theaffected citizens must have an opportunity to meet the case. Audialteram partem is part of the principles of naturaljustice………………… ”F125. Thus, the State Government, as juristic entity, has right toprotect its property through the writ court, just as any individual couldhave invoked the jurisdiction of the High Court. Therefore, the StateGovernment is competent to invoke the writ jurisdiction against the actionof the Wakf Board to declare the land measuring 1654 acres and 32Gguntas as wakf property.

126. An argument was raised that the writ petition should nothave been filed by the State Government challenging the publication of anotification in the State Gazette and that the dispute between the Revenue

Department and Minority Department should be considered by theSecretaries of the State government. The said argument raised wasbased upon an order passed by this Court as Chief Conservator ofForests, Govt. of A.P. wherein the reliance was placed on an earlierjudgment reported as Oil and Natural Gas Commission v. Collectorof Central Excise[68].

127. The Constitution Bench in judgment reported as ElectronicsCorporation of India Limited v. Union of India[69 ]has recalled theorders passed in the past including the orders passed in Oil and NaturalGas Commission, the judgment which was relied upon by the HighCourt. It was held that the mechanism was set up with laudatoryobject. However, the mechanism has led to delay in filing of civil appealscausing loss of revenue. One cannot possibly expect timely clearanceby the Committees. In such cases, grant of clearance to one and not tothe other may result in generation of more and more litigation. Themechanism has outlived its utility. Therefore, reliance on the judgment inChief Conservator of Forests is not tenable and no such objectionsurvives.128. It may be noticed that the writ petition was filed by the ChiefSecretary of the State when inter-departmental communications of theRevenue and the Minority Welfare Department were at cross purposes.The communications dated 25.1.2007, 4.5.2007 from the Minority WelfareDepartment are to direct Collector to deliver possession of the balance/vacant and unutilized land whereas the communication dated 12.6.2007to the Secretary Revenue Department was for request that Corporationshould maintain status quo and not allot or alienate any land unless anduntil the issue is finalized by State Government. Such letters wereforwarded to Wakf Board as well. The Minority Welfare Departmentwas in fact seeking decision by the State Government. Thesecommunications are not the orders passed by the Minority WelfareDepartment of the State Government in respect of nature of land so asto raise the bar of invocation of writ jurisdiction by the State.

(3) Whether the State is estopped to challenge thenotification inter-alia on the ground that Government Pleader waspresent before the Nazim Atiyat and before the High Court in

68 (1995 Supp (4) SCC 541

69 (2011) 3 SCC 404

Aproceedings against the order passed by Nazim Atiyat and thatthe notification was published in State Government Gazette?

129. It is to be noted that the presence of the Government Pleaderbefore the Nazim Atiyat was for limited purpose as the grants were tobe paid by State Government. The State was not party either beforeBthe Nazim Atiyat or before the High Court. The State would be boundby the orders, if it was impleaded as party as it is likely to be affected onaccount of the orders passed. The liability of State for payment of grantwas not in dispute but the question was as to whom the grants would bepayable. Thus, the presence of Government Pleader was for the limitedpurpose of facilitating the implementation of the orders passed.C

130. perusal of the record of the Wakf Board, as extractedabove, shows that the Errata notification was published when the samewas sent by the Chief Executive Officer of the Wakf Board to theCommissioner, Government Printing Press on 13.03.2006. This publicationof notification was made under Section 5(2) of the 1995 Act under theDauthority of the Chief Executive Officer of the Wakf Board. Hence, thenotification was not at the instance of the State Government but was anact of the Wakf Board alone.

131. The argument raised that since the Errata notification waspublished in State Government Gazette, therefore, the State cannot turnEaround to say that they had no knowledge or that they are not bound bythe notification so published is not tenable. We find that the purpose,object and scope of the publications in the Official Gazette is not what issought to be contended. The Court is to presume the genuineness of anydocuments published in any Official Gazette as contemplated by SectionF81 and Section 114 (e) of the Evidence Act, 1872. The publication in theOfficial Gazette is not only forthe affairs of the State but has multipleuses. In fact, this question has been examined by Division Bench ofDelhi High Court in judgment reported as Universal Cans &Containers Ltd. v. Union of India[70], wherein the Court has quotedvarious parts of the Gazette required to be published by the CentralGGovernment. Section 4, Part III of the Gazette is meant for MiscellaneousNotifications including Notifications, Orders, Advertisements and Noticesissued by Statutory Bodies, whereas Part IV is meant for Advertisementsand Notices issued by Private Individuals and Private Bodies. Similar

scheme of the publication in the Gazette would be available in the Statesas well. The High Court held as under:-

“8. Under Section 3(39) of the General Clauses Act, 1897, “OfficialGazette” or “Gazette” shall mean the Gazette of India or theOfficial Gazette of State. What is Official Gazette and underwhat authority it is published? is yet another question. Gazetteis generally understood as an Official Government Journalcontaining public notices and other prescribed matters. LegalGlossary (1983 Edition) issued by the Legislative Department ofthe Ministry of Law, Justice and Company Affairs, Governmentof India, defines Gazette as “an official newspaper containinglists of Government appointments, legal notices, dispatches, etc

xxxxxx

20. Under Section 81 of the Indian Evidence Act, 1872, the Courtshall presume the genuineness of every document purporting tobe in Official Gazette, and read with Section 114 of the said Actand Illustration (e) there to, the court can presume that the OfficialGazette was notified on the date as appearing in the OfficialGazette. However, this is only rebuttable presumption. It can berebutted by the evidence to the contrary. As noted above, in thepresent case it has been shown that the Official Gazette wasnotified on date after the date appearing on the Gazette. Section5 of the General Clauses Act, 1897, provides that where anyCentral Act is not expressed to come into operation on particularday, then it shall come into operation on the day on which it receivesthe assent of the President. This is not applicable in the presentcase. Here we are concerned with notification in the OfficialGazette”.

132. The Wakf Board is statutory authority under the 1954 Actas well as under the 1995 Act. Thus, the Official Gazette had to carryany notification at the instance of the Wakf Board. Therefore, the StateGovernment is not bound by the publication of the notification in theOfficial Gazette at the instance of the Wakf Board only for the reasonthat it has been published in the Official Gazette. The publication of anotice in an Official Gazette has presumption of knowledge to thegeneral public as an advertisement published in newspaper. Therefore,mere reason that the notification was published in the State Governmentgazette is not binding on the State Government.

A(4) Whether the notification published at the instance ofWakf Board is in exercise of power conferred under Section 32read with Section 40 of the 1995 Act?

133. It has been argued that the Board is competent to collectinformation regarding any property which it has reason to believe to beBWakf property and if any question arises as to whether particularproperty is Wakf property or not, or whether wakf is sunni wakf ora shia wakf, it may, after making such inquiry as it may deem fit, decidethe question.

134. The argument of Mr. Ahmadi is that the Board under SectionC32(2)(n) has the power to investigate and determine the nature and extentof wakf and wakf property and to cause whenever necessary, surveyof such wakf property. It is thus contended that the Wakf Board has astatutory function to investigate and determine the nature and extent ofwakf. Such power is not dependent upon the provisions of Section 40 ofthe 1995 Act as the power to investigate and determine is exhaustive asDcontained in Section 32(2)(n) of the 1995 Act.

135. Reliance has been placed upon judgment of Kerala HighCourt in A.P.A. Rasheed wherein the Division Bench of Kerala HighCourt examined the question as to whether Wakf Board acting underSection 32 of the 1995 Act is an adjudicatory body. The High Court heldEthat powers under Section 32 are in the nature of powers ofsuperintendence in administration and empowers the Wakf Board topass interim as well as final orders. The Court held as under:

“10. But it cannot be lost sight of that, basically the powers underSection 32 are in the nature of the powers of superintendence inFadministration. reading of Section 32 clearly shows that Section32 does not make any distinction between final orders and interimorders. When the situation demands, Section 32 certainlyempowers the Wakf Board to pass interim orders as well as finalorders. There is nothing in the language of Section 32 which canGlimit the powers of the Board to pass only final orders and notinterim orders. The sweep of the powers under Section 32(1) asfurther explained by Section 32(2), according to us, can leave nosemblance of doubt in our minds that interim as well as finaldirections can be issued by the Board under Section 32. The firstcontention raised that the Board does not have competence toH

issue interim orders like the one issued in the impugned orderscannot therefore succeed. This point is answered against the firstrespondent.

xxxxxx

12. We repeat that the powers under Section 32 are powers ofsuperintendence. Such powers are to be exercised primarily toensure that the Wakfs are properly maintained, controlled andadministered. This is very clear from Section 32(1). Section32(2)(c) clearly suggests that the Wakf Board has powers to givedirections for the administration of the Wakf. Sub clause (o) showsthat the Board has powers to do such acts as may be necessaryfor the control, maintenance and administration of the Wakf.”

136. The High Court in the aforementioned case was examiningscope of Section 32. It held that such powers are to be exercised primarilyto ensure that the wakfs are properly maintained, controlled andadministered. Sub-clause (o) shows that the Board has powers to dosuch acts as may be necessary for the control, maintenance andadministration of Wakf.

137. Mr. Ahmadi has further relied upon an order passed by thelearned Single Bench of the Calcutta High Court in Amjad Ali Mirza’scase. It may be stated that sale deed was executed by Secretary ofState for India-in-Council in favour of five men managing committee on31.7.1926. One of the questions examined was the scope of Section 40of 1995 Act. It was held that the impugned resolution of the Wakf Boardunder Section 40 of 1995 Act was virtually devoid of reasons. The titlein respect of property was decided by the resolution but the Board didnot care to record even semblance of judicial consideration while takingthe resolution. However, the Court examined the sale deed dated31.07.1926 to hold that the transfer was not in favour of the committeemembers in their personal capacity or for their individual interest butsolely for the worship of the Mohammedan community. The High Courtheld as under:

“54. Section 40 of the Waqf Act empowers the board to collectinformation by itself about property which it has reason to believeto be waqf property and after making an inquiry as it may deemfit, to decide such question. The section doe not specify the natureof inquiry to be undertaken by the board in arriving at decision in

that regard. In view of the summary nature of the proceeding ascontemplated in the said section, detailed evidence or hearing mightnot be taken/given by the board before coming to decision as towhether property is wakf property. In the present case, whatis to be seen is whether adequate documents and materials werebefore the board to declare the suit property to be waqf property.

xxxxxx

xxx

58. As such, the deed of 1926 makes it categorically clear that thetransfer was not in favour of the committee members in theirpersonal capacity or for their individual interest but solely for theworship of the Mohammedan community.

xxxxxx

63. Although Section 40 was not complied with in terms in thestrictest sense, the spirit of Section 40 was complied with inasmuchas the board considered deed of 1926, the execution of whichDhas not been rebutted by the petitioners. The said deed, on ameaningful reading, can only be interpreted to be dedication forthe purpose of the God Almighty and worship by the Mohammedancommunity, if not directly in the name of God Almighty. The willof Allah in the Islamic sense has to be manifested through humanagency, for which the investiture contemplated in the 1926 deedEwas in favour of the human beings, who would act as agents toperpetuate worship by the Mohammedan community.

64. Hence, despite the resolution taken by the board beingtechnically unsound due to dearth of reasons, the conclusion arrivedat by the Board was correct.”F

138. Therefore, the judgment of the High Court was interpretingthe document which was subject matter of consideration before the HighCourt. The inquiry under Section 40 was found to be perfunctory withoutrecording any reasons. Therefore, the said judgment is actually not helpfulto the argument of Mr. Ahmadi.

139. The question to be examined is that power to investigate anddetermine the nature of property is an administrative function as submittedby the Learned Counsel for the Wakf Board and Dargah or is it quasi-judicial function as an inquiry is required to be conducted before anyproperty is declared to be Wakf property. It was argued by the appellantsHthat since such order of the Wakf Board is final, subject only to an

appeal before the Wakf Tribunal, it has to be reasoned and speakingorder as in appeal, the correctness of the reasons recorded by the Boardwould be required to be examined.

140. The test to determine as to whether an institution dischargesquasi-judicial function came up for consideration before this Court in ajudgment reported as Indian National Congress. This Court held thatif law requires that an authority before arriving at decision must makean inquiry, such requirement of law makes the authority quasi-judicialauthority. This Court held as under:-

“25. Applying the aforesaid principle, we are of the view that thepresence of lis or contest between the contending parties beforea statutory authority, in the absence of any other attributes of aquasi-judicial authority is sufficient to hold that such statutoryauthority is quasi-judicial authority. However, in the absence ofa lis before statutory authority, the authority would be quasi-judicial authority if it is required to act judicially.

27. What distinguishes an administrative act from quasi-judicialact is, in the case of quasi-judicial functions under the relevantlaw the statutory authority is required to act judicially. In otherwords, where law requires that an authority before arriving at adecision must make an Inquiry, such requirement of law makesthe authority quasi-judicial authority.”

141. In Constitution Bench judgment reported as Province ofBombay v. Khushaldas S. Advani & Ors.[71], this Court deducedprinciples as to when an authority can be said to exercising quasi-judicialfunctions. It was held that the absence of two parties is not decisive intaking the act of the authority out of the category of quasi-judicial act ifthe authority is nevertheless required by the statute to act judicially. ThisCourt held as under:

“173. What are the principles to be deduced from the two lines ofcases I have referred to? The principles, as I apprehend them,are:

(ii) that if statutory authority has power to do any act which willprejudicially affect the subject, then, although there are not two

Aparties apart from the authority and the contest is between theauthority proposing to do the act and the subject opposing it, thefinal determination of the authority will yet be quasi-judicial actprovided the authority is required by the statute to act judicially.

174. In other words, while the presence of two parties besidesBthe deciding authority will prima facie and in the absence of anyother factor impose upon the authority the duty to act judicially,the absence of two such parties is not decisive in taking the act ofthe authority out of the category of quasi-judicial act if the authorityis nevertheless required by the statute to act judicially.”

C142. This Court in judgment reported as State of HimachalPradesh v. Raja Mahendra Pal & Ors.[72 ]held that quasi-judicialfunction stands midway between judicial and an administrative function.The primary test is as to whether the authority alleged to be quasi-judicial one, has any express statutory duty to act judicially in arriving atthe decision in question. If the reply is in the affirmative, the authorityDwould be deemed to be quasi-judicial, and if the reply is in the negative,it would not be. It was held as under:-

“9. It follows, therefore, that an authority is described as quasi-judicial when it has some of the attributes or trappings of judicialfunctions, but not all. This Court in Province of Bombay v.EKhushaldas S. Advani [AIR 1950 SC 222 : 1950 SCR 621] dealtwith the actions of the statutory body and laid down tests forascertaining whether the action taken by such body was quasi-judicial act or an administrative act. The Court approved thecelebrated definition of the quasi-judicial body given by Atkin, L.J.,Fas he then was in R. v. Electricity Commrs. [(1924) 1 KB 171 :130 LT 164] in which it was held:

“Whenever any body of persons having legal authority to determinequestions affecting rights of subjects, and having the duty to actjudicially act in excess of their legal authority they are subject toGthe controlling jurisdiction of the King’s Bench Division exercisedin these writs.”

The aforesaid definition was accepted as correct in R. v. LondonCounty Council [(1931) 2 KB 215 : 144 LT 464] and many

subsequent cases both in England and in India. Again this Court inRadeshyamKhare v. State of M.P. [AIR 1959 SC 107 : (1959) 1MLJ 5 (SC)] relying upon its earlier decision held:

“It will be noticed that this definition insists on three requisiteseach of which must be fulfilled in order that the act of the bodymay be quasi-judicial act, namely, that the body of persons (1)must have legal authority, (2) to determine questions affecting therights of parties, and (3) must have the duty to act judicially. Sincea writ of certiorari can be issued only to correct the errors of acourt or quasi-judicial body, it would follow that the real anddetermining test for ascertaining whether an act authorised by astatute is quasi-judicial act or an administrative act is whetherthe statute has expressly or impliedly imposed upon the statutorybody the duty to act judicially as required by the third condition inthe definition given by Atkin, L.J.

Relying on paras 114 and 115 of Halsbury’s Laws of England, 3rdEdn., Vol. 11 at pp. 55-58 and citing the case of R. v. ManchesterLegal Aid Committee [(1952) 2 QB 413 : (1952) 1 All ER 480]learned counsel for the appellants contends that where statuterequires decision to be arrived at purely from the point of view ofpolicy or expediency the authority is under no duty to act judicially.He urges that where, on the other hand, the order has to be passedon evidence either under an express provision of the statute or byimplication and determination of particular facts on which itsjurisdiction to exercise its power depends or if there is proposaland an opposition the authority is under duty to act judicially. Asstated in para 115 of Halsbury’s Laws of England, Vol. 11 at p. 57the duty to act judicially may arise in widely differing circumstanceswhich it would be impossible to attempt to define exhaustively.The question whether or not there is duty to act judicially mustbe decided in each case in the light of the circumstances of theparticular case and the construction of the particular statute withthe assistance of the general principles laid down in the judicialdecisions. The principles deducible from the various judicialdecisions considered by this Court in Khushaldas S. Advani [AIR1950 SC 222 : 1950 SCR 621] at p. 725 (of SCR) : (at p. 260 ofAIR) were thus formulated”.

[2022] 19 S.C.R.

A143. This Court in judgment reported at Kranti Associates heldas under:

“47. Summarising the above discussion, this Court holds:

(a) In India the judicial trend has always been to record reasons,even in administrative decisions, if such decisions affect anyoneBprejudicially.

xxxxxxxxx

(d) Recording of reasons also operates as valid restraint on anypossible arbitrary exercise of judicial and quasi-judicial or evenCadministrative power.

xxxxxxxxx

(f) Reasons have virtually become as indispensable componentof decision-making process as observing principles of naturaljustice by judicial, quasi-judicial and even by administrative bodies.”D

144. In respect to the provisions of Section 32 of the 1995 Act, aDivision Bench of Kerala High Court in judgmentreported as EzhomeSunni ValiyaJuma Masjid v. Kerala State Wakf Board,[73 ]held thatwhen the Wakf Board is called upon to decide lis which falls within itsjurisdiction and has to be done based on the materials made availableEbefore it, after hearing the parties and its decision has far reachingrepercussion on the rights of the parties, it is quasi-judicial function. Itwas held as under:-

“10. The aforementioned provisions dealing with the powers andduties of the Waqf Board and other related provisions under theFAct would reveal there may be many acts which may be done bythe Board. Among them, some are obviously administrative innature. But, when the Board is called upon to decide lis whichfalls within its jurisdiction and has to be done based on the materialsmade available before it, after hearing the parties and its decisionhas far reaching repercussion on the rights of the parties, it has aGquasi-judicial function. (See the decision in PuthencodeJuma -ath Committee v. Abdul Rahiman, [2011 (3) KLT (SN) 155]). Aquasi-judicial function is an administrative function which the lawrequires to be exercised in some respects as if it were judicial. It

is subject to some measure of judicial procedure. As regards quasi-judicial functions, they cannot be delegated unless the authorityconcerned is enabled to do so expressly or by necessaryimplication. The general principle is that where any kind of adecision on lis has to be made, it must be made by the authorityempowered by the statute concerned and by no one else. We willdeal with the same further, little later.”

145. Thus, we find that the power of the Board to investigate anddetermine the nature and extent of Wakf is not purely an administrativefunction. Such power has to be read along with Section 40 of the Actwhich enjoins “a Wakf Board to collect information regarding any propertywhich it has reason to believe to be wakf property and to decide thequestion about the nature of the property after making such inquiry as itmay deem fit.” The power to determine under Section 32(2)(n) is thesource of power but the manner of exercising that power is contemplatedunder Section 40 of the 1995 Act. An inquiry is required to be conductedif Board on the basis of information collected finds that the property inquestion is wakf property. An order passed thereon is subject to appealbefore the Wakf Tribunal,after an inquiry required is conducted in termsof sub-section (1) of Section 40. Therefore, there cannot be any unilateraldecision without recording any reason that how and why the property isincluded as wakf property. The finding of the Wakf Board is final,subject to the right of appeal under sub-section (2). Thus, any decisionof the Board is required to be as reasoned order which could be testedin appeal before the Wakf Tribunal.

146. Therefore, the Wakf Board has power to determine the natureof the property as wakf under Section 32(2)(n) but after complying withthe procedure prescribed as contained in Section 40. Such procedurecategorically prescribes an inquiry to be conducted. The conduct of inquirypre-supposes compliance of the principles of natural justice so as to giveopportunity of hearing to the affected parties. The proceedings producedby the Wakf Board do not show any inquiry conducted or any noticeissued to either of the affected parties. Primarily, two factors had led theWakf Board to issue the Errata notification, that is, order of theNazimAtiyat and the second survey report. Both may be considered asmaterial available with the Wakf Board but in the absence of an inquiryconducted, it cannot be said to be in accordance with the procedureprescribed under Section 40 of the 1995 Act.

A147. Since there is no determination of thefact whether theproperty in question is wakf property after conducting an inquiry interms of Section 40(1) of the 1995 Act, the Errata notification cannot bedeemed to be issued in terms of Section 32 read with Section 40 of the1995 Act. Such determination alone could have conferred right on theaffected parties to avail the remedy of appeal under Section 40 of theB1995 Act.

148. The reliance on proviso to Section 40(3) of 1995 Act,contemplating noticeto the registered trust or society in case the Boardhas any reason to believe that any property is Wakf and is registeredunder any of the Acts is absolutely misconceived. These provisions dealCwith an altogether different situation. trust or society is alreadyregistered but the if Board finds it to be Wakf, the statute contemplatesnotice to the authority. It does not mean that such trust or society is notrequired to be heard. The hearing to Trust or Society would also be asper the principles of natural justice.D(5) Whether the second survey report and/or the order ofthe Atiyat Court could be said to be sufficient material with theWakf Board to publish the impugned Errata notification inexercise of powers vested in Section 5 of the 1995 Act?E149. The argument in support of the Errata notification dated13.03.2006 is that it is traceable to the powers conferred on the WakfBoard under Section 5 of the 1995 Act. The exercise of the publicationof notification is the power conferred on the Wakf Board. Therefore,the fact that second survey report was not submitted to the StateGovernment was inconsequential as it was only ministerial action. OnceFthe Board had the power to publish notification after perusing the variousdocuments, the same could not be said to be illegal only for the reasonthat the report was not submitted to the State Government as contemplatedby sub-section (1)of Section 5 of the 1995 Act. The argument raised byMr. Ahmadi that the notification is in terms of Section 5 of 1995 Act isGnot tenable. It is an admitted case that the second survey report was notsubmitted to the State Government and such report has not even beenforwarded by the Government to the Wakf Board.The Wakf Board mayhave right to requisition of any document in terms of power conferredunder Section 105 of the 1995 Act, but if procedure is prescribed forissuance of notification, it couldbe issued only in the manner prescribedH

and not in any other manner. Reference be made to judgment of thisCourt reported as Babu Verghese v. Bar Council of Kerala[74 ]whereinthis Court held as under:-

“31. It is the basic principle of law long settled that if the mannerof going particular act is prescribed under any Statute, the actmust be done in that manner or not at all. The origin of this rule istraceable to the decision in Taylor v. Taylor, (1875) 1 Ch 426which was followed by Lord Roche in Nazir Ahmad v. KingEmperor, 63 Ind App 372 who stated as under :

“Where power is given to do certain thing in certain way, thething must be done in that way or not at all.”

32. This rule has since been approved by this Court in Rao ShivBahadur Singh v. State of Vindhya Pradesh, 1954 SCR 1098 andagain in Deep Chand v. State of Rajasthan, (1962) 1 SCR 662.These cases were considered by Three Judge Bench of thisCourt in State of Uttar Pradesh v. Singhara Singh, AIR 1964Supreme Court 358 and the rule laid down in Nazir Ahmad’s case(supra) was again upheld. The rule has since been applied to theexercise of jurisdiction by Courts and has also been recognised asa salutary principle of administrative law.”

150. Constitution Bench in judgment reported as CIT v. AnjumM.H. Ghaswala[75 ]reiterated that when statute vests certain power inan authority to be exercised in particular manner, then the said authorityhas to exercise the same only in the manner prescribedby the statuteitself. It was held as under:-

“27. Then it is to be seen that the Act requires the Board to exercisethe power under Section 119 in particular manner i.e. by way ofissuance of orders, instructions and directions. These orders,instructions and directions are meant to be issued to other income-tax authorities for proper administration of the Act, the Commissionwhile exercising its quasi-judicial power of arriving at settlementunder Section 245D cannot have the administrative power of issuingdirections to other income-tax authorities. It is normal rule ofconstruction that when statute vests certain power in an authorityto be exercised in particular manner then the said authority has

74 (1999) 3 SCC 422

75 (2002) 1 SCC 633

1332SUPREME COURT REPORTS

Ato exercise it only in the manner provided in the statute itself. Ifthat be so since the Commission cannot exercise the power ofrelaxation found in Section 119(2)(a) in the manner provided thereinit cannot invoke that power under Section 119(2)(a) to exercisethe same in its judicial proceedings by following procedurecontrary to that provided in sub-section (2) of Section 119.”B151. Therefore, we are unable to agree with Mr. Ahmadi thatsince it was only ministerial part of submission of the second surveyreport to the State Government, therefore, the Board hadthe jurisdictionto publish notification under Section 5.

C152. The question now to be examined is whether the Board couldissue the Errata notification after lapse of 17 years from the date offirst notification, i.e., 9.2.1989. The exercise leading to the notificationstarted with letter from Syed Safiullah Hussaini, the Mutawalli on30.1.2005. He is the mutawalli mentioned in the first notification publishedin the year 1989. Since the notification was issued with him as Mutawalli,Dthen his inaction for 17 long years speaks volumes of his bona-fide ininitiating the process to include the large area of land as wakf.

153. We would need to examine as to what is scope and meaningof the word “errata”.”Errata” is termof French origin whichmeans athing that should be corrected. It means mistake in printing or writing.EReference may be made to judgment reported as Parvati Devi v.State of U.P.[76]. It was held as under:-

“20. The word “Erratum (French) means mistake in printing orwriting; note drawing attention to such mistake. list ofmistakes added at the end of book.

F21. The word “Errata” is word of French origin and means ‘athing that should be corrected.’ After book has been printed, itoften happens that certain mistakes are found to have beenoverlooked. In later editions, it is usual to insert, list of suchmistakes and to point out the necessary corrections. These arecalled ‘corrigenda’.G

xxxxxxxxx

23. In Judicial Dictionary by Justice L.P. Singh and Majumdar,2nd Edition, page 552, while quoting the following passage in Assam

H76 (2007) 6 ALL LJ 50

Rajyik Udyog Karmi Sangha v. State of Assam, (1996) Gau.L.R. 236, (at page 241), the word “corrigendum” has been definedas follows:—

“The dictionary meaning of the word “corrigendum” means thingsto be correct. It means there must be an error and there is anecessity to amend and rectify it. In the garb of corrigendum, arule cannot be altered and or changed, but that is what appears tohave been done in the instant case. In order to alter or modify arule the same procedure adopted in making of the rule have to begone through.”

24. The meaning and application of the word “corrigendum” hasbeen considered by the Courts time and again. In Commissionerof Sales Tax, U.P. v. Dunlop India Ltd., (1994) 92 STC 571,this Court held that corrigendum is issued to correct mistake inthe notification, therefore, would relate back to the date of issuanceof the original notification.

25. In Piara Singh v. State of Punjab, (2000) 5 SCC 765 : AIR2000 SC 2352, the Hon’ble Supreme Court held that there is nobar on issuing the corrigendum or ‘more corrigenda’ for correctingthe arithmetical error.

xxxxxx

27. In view of the above, the legal position can be summarisedthat corrigendum can be issued only to correct typographicalerror or omission therein. However, it is meant only to correcttypographical/arithmetical mistake. It cannot have the effect oflaw nor it can take away the vested right of person nor it canhave the effect of nullifying the rights of persons conferred by thelaw”.

154. We find that in the facts of the present case, the Erratanotification is nothing but fresh notification altogether. Errata is acorrection of mistake. Hence, only arithmetical and clerical mistakescould be corrected and the scope of the notification could not be enlargedby virtue of an errata notification. As against 5506 sq. yards of landnotified as wakf property in the year 1989, large area of 1654 acres and32 guntas of land could not be included under the guise of an erratanotification as it is not case of clerical or arithmetical mistake butinclusion of large area which could not be done without conducting

Aproper Inquiry either under Section 32(2)(n) read with Section 40 or onthe basis of survey report which was called by the State Government byappointing Survey Commissioner.

155. It may be noticed at this stage that the second survey reportas called by the Wakf Board from the Survey Commissioner has manyBinterpolations visible to the naked eye which creates adoubt on thecorrectness of the report which could form as reasonable base toconfer jurisdiction on the Wakf Board to include such land as wakfland.

156. The other part of question is as to whether the order of theCAtiyat Court could be said to be relevant to determine the nature of jagirvillage Manikonda as that of Wakf land.

157. The Enquiries Act was enacted to consolidate the lawregarding Atiyat grants and enquiries as to claim ofsuccession to, or anyright, title or interest in Atiyat grants by repealing Dastoor-ul-Amal InamsDand Circular No. 10 of 1338 Fasli (1928 AD). In fact, it appears that aCircular No. 19 of 1332 Fasli (19.03.1923) was initially issued by theSovereign for judicial determination of disputes regarding Atiyat grants.The Circular No. 10 of 1338 Fasli (1928 AD) was repleaded specificallyin terms of Section 15 of the EnquiriesAct.

E158. The EnquiriesAct is special Act to deal with the issues ofsuccession in respect of grants given by the Sovereign. It is the decisionof the Civil Court which is to prevail on question of succession, legitimacyetc. The jurisdiction of the Atiyat Courts is limited to the issues whichfall within its jurisdiction. The dispute regarding claim of the commutationfalls within the jurisdiction of the Enquiries Act. The Atiyat grants alsoFinclude the amount of compensation payable under the Inams AbolitionAct. Section 2 provides that all Atiyat grants shall, subject to provision ofAbolition Regulation and the Abolition of Inams Act, continue to be heldby the holders thereof subject to the conditions as laid down in thedocuments issued by competent authorities as result of inam orGsuccession inquiries held under the Dastoor-ul-Amal Inams or otherGovernment orders on the subject and issued by way of continuance orconfirmation of Atiyat grants. Section 3 of the Enquiries Act is subject tothe provisions of Abolition Regulation as well as Inams Abolition Act asit contemplates that all Atiyat grants would continue to be held by theholders as laid down in the documents issued by competent authoritiesH

as result of inam or succession inquiries.Under Section 3-A, the AtiyatCourts shall make inquiriesas to any right, title or interest notwithstandingthe enactment of Abolition Regulation. Therefore, the scheme of theAct is to conduct inquiry in respect of entitlement to receive Atiyat grantand to decide the right of succession amongst the person entitled toreceive the grants. In fact, the Enquiries Act cease to apply when thecommutation sum has ceased to be payable on account of Abolition ofJagirs under Section 2(1)(b)(i).159. Atiyat grants have been defined to mean in the case of jagirsabolished under the Abolition Regulation, the commutation sums payableunder the Commutation Regulation. The Atiyat grant exclude inams underthe Inams Abolition Act but contemplates the payment of compensationwithin the ambit of Atiyat grants. The inquiry is to be held by AtiyatCourts in accordance with the provisions of the Act including inquiriesinto claims to succession arising in respect of such grants. An appeal liesto the Board of Revenue against the order of the Nazim Atiyat in termsof Section 11 of the Act.The decision of the Civil Court is to prevail onquestions of succession, legitimacy etc. in terms of Section 12 of theAct. Section 13 gives finality to thedecision of the Atiyat Court.

160. However, sub-section (2) provides that the orders passed incases relating to Atiyat grants on or after 18.9.1948 and before thecommencement of the Act by the Military Governor, the Chief CivilAdministrator or the Chief Minister of Hyderabad or the Revenue Ministerby virtue of powers given or purported to be given to him by the ChiefMinister shall be deemed to be the final orders validly passed by acompetent authority under the law in force at the time when the orderwas passed and shall not be questioned beforeany Court of law.

161. In Raja Ram Chandra Reddy, the order of the ChiefMinister was treated to be an order of the Sovereign. It was held that nolimitation could have been imported into the effect of Farman of theNazim. The Chief Minister’s order would stand validated by Section13(2) of the Enquiries Act irrespective of the competence of thepreceding authorities which dealt with the case. The order passed bythe Chief Minister passed on 29.5.1956 would be binding order interms of Section 13(2) of the Enquiries Act. This Court held as under:-

“12. ………………….Even, on the view suggested by Mr.Engineer, the Chief Minister’s order in such cases was to be taken

Aas substitute for the Nizam’s Firman and the purpose of Section13(2) was to obviate the possible objection that the Nizam’s Firmanin Atiyat cases was an exercise of his prerogative and could notbe delegated.

If, as contended, the true purpose of Section 13(2) was toBsupply the lack of the imprimatur of the Nizam’s Firman, it isdifficult to see why the operation of this provision should beconfined to such of the Chief Minister’s orders as are precededby recommendations of competent authorities.

No such limitation could have been imported into the effectCof the Nizam’s Firman, at the time when the Nizam was in aposition to issue the Firmans. We have no doubt, therefore, that ifthe intended effective order in particular case was the ChiefMinister’s order, such an order would be validated by Section13(2) irrespective of the competence of the preceding authoritieswho dealt with the case.”D

162. It is to be noted that the Enquiries Act is applicable in respectof Atiyat grants alone. Atiyat grants after the commencement of JagirAbolition Regulation mean only the commutation sum payable under theCommutation Regulation or the compensation payable under the InamsAbolition Act or cash grants etc. The Nazim Atiyat passed its order onE31.5.1957, when its jurisdiction was only in respect of commutationpayable after the commencement of the Commutation Regulation.Factually, the order of the Nazim Atiyat is regarding distribution of sharesin the Biradari portion of Mashrut-ul-Khidmat whereas rest of the propertywas to be considered MadadMaash. Since the jurisdiction of the NazimFAtiyat was restricted only to the commutation amount payable, the findingregarding Mashrut-ul-Khidmat land or Madad Maash land is beyondthe scope of the authority of Nazim Atiyat on the date when the orderwas passed.163. perusal of the order of the Nazim Atiyat shows that theGNazim was conscious of the factum of the Jagir Abolition Regulation,Commutation Regulation as well as Abolition of Inams Act. Therefore,the order was passed subject to the said three statutes. The statuteshave to be read along with the order of the Chief Minister making itcategorical that jagir Manikonda stood vested with the State. Therefore,the order of Nazim Atiyat is operative only quathe commutation amountH

payable to the dependents of Sajjada and the amount payable to theMuslim Wakf Board, now represented by the Wakf Board. In terms ofSection 10(2)(i) of the commutation Regulation, 90% of the gross basicsum referred to in Section 4 of the Commutation Regulation is payableto the religious and charitable institutions. Therefore, by virtue of theAbolition and the Commutation Regulation, the claim of the Wakf Boardis restricted only to 90% of the amount of the gross basic sum referredto in Section 4 of the Commutation Regulation. Therefore, after theAtiyat grants stood abolished in terms of Abolition Regulation, the AtiyatCourts would have jurisdiction to decide issues relating to succession ofthe commutation amount payable to the heirs.

(7) Whether the land in question is Mashrut-ul-Khidmatland and thus would continue to be wakf land even though thejagir of the village was abolished or that the land vested in theState under Abolition Regulation or the Commutation Regulationor under the Inams Abolition Act?

164. perusal of the order of Nazim Atiyat shows that theSovereign has issued Royal Order on 1[st] Ramzan, 1333 Hijri i.e.13.07.1915 directing Sajjada to pay debt amount in lumpsum to themortgagee Hussain Bin Muqaddam Jung. The said Farman has beenproduced by the learned counsel for the Dargah as reproduced in Para44 of the order. It has also come on record that the Sovereign in 1249Fasli granted conditional jagir on Oodh-O-Gul (flowers and perfume)expenditure of the Dargah. It was held that since the property wasmortgaged with the sanction of the minister, it conforms to the conditionalnature of the Maash as no permission would have been necessary if theproperty was self-purchased. Later, referring to the order of the ChiefMinister dated 29.5.1956, it was held that Manikonda and Guntapallivillages are conditional on service to the Dargah. However,under IssueNo.3, it was held that Syed Safiullah Hussaini as Sajjada shall be entitledto 2/3[rd] share according to Sula-e-Sulsan rule in the property for renderingservice but such share was made subject to the Abolition Regulation,Commutation Regulation and Inams Abolition Act. The 1/3[rd] share ofthe total property was also allotted by the Nazim Atiyat. It was the saidorder of Nazim Atiyat which was given effect to by issuing MuntakhabNo. 98.

165. The proceedings before the Nazim Atiyat started somewherein the year 1923. The rights of the parties were being examined on the

Adate when the plaint was filed before the Atiyat Court. Due to subsequentaction of the Sovereign, decision to abolish jagirs and consequently forpayment of the commutation was taken. The Enquiries Act was amendedin 1956 which makes the provisions of the Enquiries Act inapplicablewhen the commutation sum has ceased to be payable under Section 16and the Atiyat grants mean the commutation sums payable under theBCommutation Regulation after the Abolition Regulation and that eventhe commutation sum shall cease to apply to an Atiyat grants. Thus, theJurisdiction of the Atiyat Court would be limited to the disputes relatingto Atiyat grants as defined in the Enquiries Act.

(8) Whether the land in question is Mashrut-ul-KhidmatlandCand thus would continue to be wakf land even though, the Jagirof the village was abolished and that the Land vested in the Stateunder Abolition Regulation or the Commutation Regulation orunder the Inams Abolition Act?

166. In celebrated book titled as Mohammedan Law by SyedDAmeer Ali (compiled from the Authorities in the original Arabic), therelevant explanation in respect of wakfs of jagirs and grants made byKings and Ameers reads thus:

“Jagirs are of two kinds, one where the land has been granted infee, that is, first the sovereign has purchased it from the Bait-ul-Emal and presented it to the grantee, or it is portion of the royaldomains; 2[nd], where the usufruct is only granted and the jagir isvested in the Crown. In the former case, the grantee may make awakf, in the latter case not.”

167. The Privy Council in judgment reported as Vidya VaruthiFThirtha v. Balusami Ayyar & Ors.[77 ]drew fine distinction betweenthe Wakf recognised by Muslim law, religious endowments recognisedby Hindu law and the Public Charitable Trust as contemplated by theEnglish law. The Court held as under:

“15. The conception of trust apart from gift was introduced inIndia with the establishment of Moslem rule and it is for this reasonGthat in many documents of later times in parts of the Countrywhere Mahommedan influence has been predominant, such asUpper India and the Carnatic, the expression wakf is used toexpress dedication.

H77 AIR 1922 PC 123

16. But the Mahommedan law relating to trusts differsfundamentally from the English law. It owes its origin to rulelaid down by the Prophet of Islam: and means “the tying up ofproperty in the ownership of God the Almighty and the devotionof the profits for the benefit of human beings.” When once it isdeclared that particular property is wakf, or any such expressionis used as implies wakf, or the tenor of the document shows, as inthe case of Jewan Doss Sahoo v. Shah Kubeerooddeen (1837) 2MIA 390 : 6 WR PC 4 : 1 Suther 100 : 1 Sar 206, that dedicationto pious or charitable purposes is meant, the right of the wakf isextinguished and the ownership is transferred to the Almighty.The donor may name any meritorious object as the recipient ofthe benefit. The manager of the wakf is the Mutwali the governor,superintendent, or curator. In Jewan Doss Sahu’s case (1837) 2MIA 390 : 6 WR PC 4 : 1 Suther 100 : 1 Sar 206 the JudicialCommittee call him “ procurator.” It related to Khankha, aMahommedan institution analogous in many respects to Muttwhere Hindu religious instruction is dispensed. The head of theseKhankhas, which exist in large numbers in India, is called sajjada-nashin. He is the teacher of religious doctrines and rules of life,and the manager of the institution and the administrator of itscharities, and has in most cases larger interest in the usufructthan an ordinary Mutwalli. But neither the sajjada-nashin nor theMutwalli has any right in the property belonging to the wakf : theproperty is not vested in him and he is not trustee” in the technicalsense.

168. The said enunciation of law was followed in judgmentreported as Nawab Zain Yar Jung (since deceased) & Ors. v. Directorof Endowments & Anr.[78] wherein, this Court has held as under:

“9. The Act was passed in 1954 for the better administration andsupervision of wakfs. Section 3(l) defines wakf as meaning apermanent dedication by person professing Islam of anymoveable or immovable property for any purpose recognised bythe Muslim law as pious, religious or charitable and includes:

(i) wakf by user;

(ii) Mashrut-ul-khidmat; and

ABC

(iii) wakf-alal-aulad to the extent to which the property isdedicated for any purpose recognised by Muslim law as pious,religious, or charitable;

and “wakif” means any person making such dedication.

Consistently with this definition of “wakf”, “beneficiary” hasBbeen defined by Section 3(a) meaning person or object forwhose benefit wakf is created and it includes religious, piousand charitable objects and any other objects of public utilityestablished for the benefit of the Muslim community. …”

169. The question as to whether the grant ofMashrut-ul-KhidmatCwould continue to be wakf land needs to be examined. The argument ofMr. Giri is that Manikonda being jagir village, the grant was for lifetime of the grantee and that such grant was neither heritable nor alienable.In Ahmad-Un- Nissa Begum, full bench of the then Hyderabad HighCourt dealt with succession to the jagir estate of one Nawab Kamal YarDJung. It was, inter alia, held that Ruler of the State was the absoluteowner of all the lands. He granted usufructuary rights to them includingthe jagirdars. It was held as under:

“7.…….The cumulative effect of the authorities referredto above is that the jagir tenures in this State consisted ofEusufructuary rights in lands which were terminable on the deathof each grantee, were inalienable during his life, the heirs of thedeceased holder got the estate as fresh grantees and the right toconfer the estate was vested in the Ruler and exercisable in hisabsolute discretion. Nevertheless, the Jagirdars had during theirlives valuable lights of managing their estates, enjoying the usufructsFand other important privileges, which conferred considerablemonetary benefits on them.

xxxxxx

12. The effects of these Regulations are that all existing Jagirtenures in the State were merged in the State lands and the StateGalone became the ultimate landlord; and the rights to receiveallowances became statutory, heritable and justiciable. Had it notbeen for the proviso to sub-S. (2) of S. 21, it could have beenargued with some justification that the rights to receive interimallowances and compensation required no special sanctions byHacceptance of the recommendations of the tribunals in pending

succession cases; for under sub-s. (3) of S. 9, the heirs of thedeceased jagirdars are declared to be entitled to their shares inthe income after the deduction of expenses.

The proviso, however, directs completion of such proceedingsaccording to the existing law, which term has been defined byclause (b) of S. 2 of Regulation no LXIX[69] of 1358 Fasli tomean the law in force at the commencement of this Regulationincluding the Atiyat Law, customs or usage having the force oflaw. Thus under the enactment still some sanction is necessary tocomplete the heirs title to the income and compensation. I havesaid that the right of regranting jagir according to the Atiyat lawwas vested in the Ruler as his prerogative on the basis of hisbeing the Seignior of the manor and could be exercised only byhim even after the Police Action.

But after the passing of the Regulation and the vesting of theSeigniory in the Government the power of regranting becomesstatutory and capable of being exercised on behalf of the newowner, whoever it may be, by the person entrusted with theexecutive powers. It was argued that event before the PoliceAction estates of jagirdars escheated to the ‘Diwani’ and neverto the Ruler. I would not attach any importance to such precedents,for in Atiyat matters the Rulers of this State have not heldthemselves bound by precedents. The position becomesfundamentally different when there are specific statutory provisionsand there are rules relating to such escheats in the Regulation.That was the legal position when Shri M.K. Vellodi was appointedas the Chief Minister.”170. The said judgment was affirmed by this Court in judgmentreported as Raja Rameshwar Rao and Another v. Raja Govind Rao[79]holding that the jagirs granted in Hyderabad State were not hereditary,though it may be that son was allowed to succeed to the father in thenormal course. The State, however, always had the right to resume thegrant at its pleasure. It was held that:

“11.…….But even this letter shows that the State has gotthe right to resume the grant at pleasure and if that is so it cannotbe said that the jagirs granted in Hyderabad were permanent and

Ahereditary, though it may be that son was allowed to succeed tothe father in the normal course. The State however had alwaysthe right to resume the grant at pleasure. The nature of jagirs inHyderabad came to be considered by bench of five Judges ofthe former High Court of Hyderabad in Ahmad-un-NissaBegum v. State [AIR 1952 Hyd 163, 167] . Ansari, J., after referringBto two cases of the Privy Council of the former State of Hyderabadas it was before 1947 and certain firmans of the Ruler observedas follows as to the nature of jagirs in Hyderabad:

“The cumulative effect of the authorities referred to above is thatthe jagir tenures in this State consisted of usufructuary rights inClands which were terminable on the death of each grantee, wereinalienable during his life, the heirs of the deceased holder got theestate as fresh grantees and the right to confer the estate wasvested in the Ruler and exercisable in his absolute discretion.Nevertheless, the Jagirdars had during their lives valuable rightsDof managing their estates, enjoying the usufructs and otherimportant privileges which conferred considerable monetarybenefits on them.”

171. Similar view was taken by the High Court in judgmentreported as Sarwarlal and Others v. State of Hyderabad[80 ]which wasEaffirmed by this Court in Sarwanlal & Anr. v. State of Hyderabad(Now Andhra Pradesh) & Ors.[81]. The issue has been examined inanother judgment reported as M/s Trinity Infraventures Limited v.The State of Telangana, represented by its Principal Secretary[82]wherein it was held as under:

F“20. (xii) These Paigah grantees, were not absolute owners ofthe estates. In fact, the Jagirsin Hyderabad State were neither inthe nature of Zamindaries of Madras State nor of Taluqaris ofU.P. While proprietary rights vested in the Zamindars of Madrasand Taluqdars of Qudh, the Jagirdars in Hyderabad were entitledonly to the usufructs of revenue from the estate for life. TheGgrant, in law, on the death of Jagirdar. The Paigah estates withwhich this case was concerned, was no exception to this. In fact,since they were burdened with the obligation to maintain Paigah

80 AIR 1954 Hyd 22781 AIR 1960 SC 862H82 2018 SCC Online Hyd 360

troops, they were liable to be resumed by the Nizam if he sowilled. The Nizam could as well commute the military burden intoan equivalent money payment and requires such payment on painof resuming the Paigah Jagir. He was, at any time entitled to statethat he does not require troops but require money in their stead.”

172. The reliance of Mr. Ahmadi upon an order passed by theAndhra Pradesh High Court in R. Doraswamy Reddy is not helpful tothe arguments raised. The High Court referred to the judgment of thisCourt in Nawab Zain Yar Jung. In the aforesaid case, the appellant insecond appeal before the High Court was asserting his rights as purchaserof the land after the issue of notification declaring such land to be wakfproperty. The argument raised was that the property does not vest inAlmighty but it vests in the person who is rendering service. It was heldthat for non-performance of service, the land can be resumed but doesnot mean that the original grantor continues to be the owner of theproperty. Once Wakf is created, it continues to be wakf. In the presentcase, the grantor of Mashrut-ul-Khidmat i.e. service to Dargah is not anindividual but the Sovereign in whom the entire interest in the propertyvested. Therefore, Sovereign who is ultimate repository of all functionsof the State, can undo the grant of service.The jagir stood abolished withthe Farman and land consequently vested with State. Such vesting wouldinclude the vesting of right of Mashrut-ul-Khidmat, which is ancillaryright as right to provide service to Dargah. The jagir or jagir rights werenot granted to Dargah.

173. It is the said judgment which was quoted with approval bythis Court in judgment reported in Sayyed Ali, in the said case, civilsuit was filed by the Wakf Board disputing long-term lease executedby Mutawalli. Learned counsel for the appellant referred to acompromise (Exhibit A-20) of the dispute between the Governmentand the Mokhasadar before the Madras High Court. The compromisecontemplated to spend portion of income for performing Moharram,monthly festivals and general upkeep of Dargah. It was held that thecompromise decree constituted inam as service inam and such grantanswers to description of wakf even if the Mokhasadars were allowedto enjoy the property. The said judgment has no applicability to thefacts in the present appeals as the Mashrut-ul-Khidmat, service grantto Dargah was granted by the Sovereign and therefore Sovereign hada right to take away that right. Such right was exercised by enacting

AAbolition and Commutation Regulations including abolishing the jagirsgranted to temples, mosques and other institutions. Therefore, theabolition of grant for the service of the Dargah is covered by Section16 of the Abolition Regulation.

174. The argument of Mr. Ahmadi is that as per the Nazim AtiyatBorder, land of jagir village Manikonda was found to be Mashrut-ul-Khidmatland i.e. income from the land was to be used for the service of Dargahthat is forpious and religious purposes. The said purpose would beconsidered as wakf under the Muslim law even before 1961 when thesame was specifically included in the 1954 Act. Thus, land which isdedicated for pious and religious purposes would continue to be wakf inCview of the principle that once wakf is always wakf. It was alsoargued that the Endowment Regulations framed in the year 1940 excludedMashrut-ul-Khidmat land from the operation of the statue as per thedefinition of endowment in Section 2 of the said Act. The reliance isplaced upon Rules 445 and 447 framed in terms of Section 16 of theDEndowment Regulations contemplating that the estates subject tocondition of service will be regarded as endowed and the proceedingswill be adopted for entering the said estates in the Book of Endowment.It was also argued that the Abolition Regulation abolished different formsof jagirs but not the jagir which was Mashrut-ul-Khidmat land, therefore,the argument is that the Abolition Regulation would not be applicable inErespect of the land dedicated to Wakf.

175. The land was mortgaged by Sajjada Safeerullah Hussainiwith the permission of the sovereign in favour of Hasan Bin MuqaddamJung on 1[st] Rajab 1296 Hijri (June 20, 1879). It shows that user of landfor service of Dargah was not as sacrosanct as is sought to be projected.FIn fact, after the death of Safeerullah Hussaini in 1303 (somewhere inthe year 1886-87), his son Akbar Hussaini submitted an application forthe restoration of Maash. It was on the request of Akbar Hussaini thattheSovereign issued the Farman on 1[st] Ramzan 1333 (13.7.1915) for therelease of the mortgaged land, subject to the Sajjada, repaying the amountGhe owes to the factory of Hasan Bin Mohsin, who appears to besuccessor of the mortgagee who died in the year 1290 Fasli (1880).

176. It is the Sovereign who had granted permission to redeemland to Akbar Hussaini. The Sovereign was the owner of all lands withinhis State. The jagirdars were permitted to enjoy the usufruct thereof.HSuch jagirdar had no right to alienate the property and after his death,

the Sovereign may regrant the same to his son but it is the Sovereignwho has had the title over the land at all material times.

177. The Shahi Farman dated 1[st]Ramjan 1333 Hijri (13.7.1915)shows two facts- (1) that the jagir land was mortgaged with Hasan BinMohsin, and (2) after his death, the land was under the supervision ofthe Government. Still further, at the time of death of the Sajjada SafeerullaHussaini, his heirs were minors and the Court of Wards was appointedto manage the estate on behalf of the minors. The Royal Order is to theeffect that Sajjada of Dargah shall regularly pay the amount to the othershareholders who have the right to receive maintenance allowancerequired for their upkeep. If the inaminquiries or inheritance inquiriesare required, the same shall be done as per the rules and regulations. Itwas thereafter that the matter was taken up by Nazim Atiyat on thebasis of plaint filed by Akbar Hussaini, son of late Safeerulla Hussainiin terms of the royal order.178. Section 16 of the Abolition Regulation specifically abolishesthe jagir granted to temple or mosque or any other institution establishedfor religious or public purpose. In the present case, jagir was not grantedto mosque or any institution established for religious or public purposebut the Sajjada was only permitted to use the usufruct of the land of thevillage for the service of the Dargah. If the jagir itself stood abolished interms of Section 16 of the Abolition Regulation, the usufruct from theland as Mashrut-ul-Khidmat was not greater than the jagir granted to areligious or public purpose. Therefore, the land granted as Mashrut-ul-Khidmat to Sajjada for rendering service to Dargah would be minorright as against the jagir granted to mosque or any other religiousinstitution. Therefore, the land which was given for Mashrut-ul-Khidmatcould very well be abolished by the Sovereign while enacting the AbolitionRegulation.

179. The column 7 of Muntakhab No. 98 describes the propertyof village Manikonda as conditional service grant to the Dargah. It doesnot override the statutory provisions. The Muntakhab is consequentialorder or decree to the order passed by Nazim Atiyat. Such jurisdictionconferred on the Atiyat Court is confined to the entitlement of the personsto the right or interest in Atiyat grants. Therefore, the Muntakhab(decree) would not enlarge the scope of the order as neither the jurisdictionof the Atiyat Courts under the Enquiries Act nor the Abolition Regulationor the Commutation Regulation, permitted the service to Dargah.

A180. Now adverting to the order of the Chief Minister dated29.05.1956 which is the other document relied upon by Mr. Ahmadiapart from the reports of the first Taluqdar and second Taluqdar asmentioned in the order of Nazim Atiyat,the reports of the first Taluqdarand the second Taluqdar are only aid to facilitate decision by the NazimAtiyat but they are not the judicial orders which could be said to beBbinding. It is the order of the Nazim Atiyat passed under the EnquiriesAct which is relevant and not the reports received from the RevenueAuthorities to arrive at the decision dated 31.05.1957. The order of NazimAtiyat in review as well as the dismissal of appeal by Board of Revenuewithout any reasons would be relevant only to the extent that suchCproceedings were initiated but remain unsuccessful. Even the order ofthe High Court in the writ petition against the order passed by the Boardof Revenue is only an order of affirmation of the order passed by NazimAtiyat, though certain observations were made which were not evenpart of the order of Nazim Atiyat. Similarly, the Muntakhab No.98 issuedby Nazim Atiyatis only consequential decree subsequent to the orderDpassed by Nazim Atiyat on 31.05.1957. In fact,the survey report at serialnumber 262, in the remark’s column, mentioned that “Dargah is lookedafter by Mutawalli and in the past, the Jagirs of Manikonda, DargahHussain Shah Wali and Guntapalli were given for the functioning ofDargah and annual Urs. The particulars of the compensation receivedEused by the Mutawalli are not known”.181. The argument that Manikonda village was in the list ofexempted jagirs and that in the final order, Manikonda and Guntapallivillages were not made subject to Abolition of Inams Act does not appearto be factually correct and in any case is of no consequence. Issue No.3Fin the order of Nazim Atiyat was whether Maqdoom Hussaini has anypreferential right over the claim of Akbar Hussaini. Maqdoom Hussainiwas claiming right as self-purchased property whereas Akbar Hussainiwas claiming as the successor of Sajjada. It was held that it was not theself-acquired property of Maqdoom Hussaini and thus the Nazim Atiyathad fixed the share of legal heirs. 1/3 family share of Mashrut-ul-KhidmatGwas in respect of jagir village of Manikonda and Guntapalli, which wasto be worked out separately whereas the rest of the property in othervillages was to be considered as Madad Mash and that the parties wereentitled to their legal shares according to Siham-e-Sharai. Therefore,the only distinction between Manikonda and Guntapalli villages is thatHthey were found to be jagir villages whereas the other villages were

found to be Madad Mash. But all the properties were subject to Abolitionof Jagirs, Commutation of Regulation and Abolition of Inams Act.

182. Alternatively, even if it is assumed that there is no mention ofAbolition of Jagir Regulation or Commutation Regulation in the order inrespect of Manikonda Village, it would be wholly inconsequential as astatute would have preference over an order passed in proceedinginitiated prior to the commencement of the statute framed under theauthority of the Sovereign. Therefore, on the date of the order passed,the Nazim Atiyat Court had no jurisdiction in respect of jagir villages orin respect of payment of inam but had only the jurisdiction to determinethe share of the heirs. Therefore, Muntakhab, the decree is only to giveeffect of determining the share of all the legal heirs. Hence, the order ofNazim Atiyat could not have overriding effectover the Abolition Regulationand Commutation Regulation.

183. The order of the Chief Minister is to the effect that theManikonda Village has been handed over to the Government due toabolition of jagir. The order further records that the commutation payableon abolition of jagir is being sent to the shares of the dependents of thefamily of Sajjada and rest to the Muslim Wakf Board towards serviceexpenses of Dargah. Therefore, the land which was described as aMashrut-ul-Khidmat stood vested with the State and the commutationamount was paid to the dependents of Sajjada and to the Muslim WakfBoard. The right, title and interest in the jagir land of Manikonda vestedwith the State with the orders of the Chief Minister. The commutationamount after the abolition of Jagir was also ordered to be paid to thedependents of the estate and the Muslim Wakf Board.

184. Though the said order of the Chief Minister was mentionedby Nazim Atiyat, it was still held that the land is Mashrut-ul-Khidmat tothe Dargah. In terms of the order of the Chief Minister, jagir Manikondavested with the State. Such order of Nazim Atiyat has to be read subjectto the order of the Chief Minister who was acting under the Farmanissued by the Sovereign. Such order being that of Sovereign, the orderof the Nazim Court, again creation of the Sovereign will not be operativeto the extent of the order passed by the Sovereign.

185. The order of the Chief Minister shows two things- that theland of Manikonda village had been handed over to the Government dueto abolition of jagirs and the commutation amount is being sent to the

Adependents on the estate as well as to the Muslim Wakf Board.Therefore, the order passed by the Nazim Atiyat is, in fact, not inaccordance with order passed by the Chief Minister, who was dischargingthe functions of the Sovereign.

186. Therefore, the Sovereign having enacted the AbolitionBRegulation and consequent Commutation Regulation was exercising itsright as the owner of the land which at all material times vested with theSovereign, subject to usufructuary right of the jagirdar. It was theSovereign who had granted right to do service to Dargah. The Sovereignwho had the right to give jagir village for service had right to takeaway that right as well. Therefore, the abolition of jagir by the AbolitionCRegulation was absolute.

187. Therefore, in terms of the Jagir Abolition Regulation, therights in the jagir and of Sajjada as holder of right to take care of Dargahstood abolished. Such is the order of Nazim Atiyat as the order wasmade subject to the Abolition and Commutation Regulations and alsoDabolition of Inam under the Inams Abolition Act.

188. In Mohd. Habbibuddin Khan, the appellant was hissedarin the Paigah estate. Such estate was abolished under the AbolitionRegulation followed by the Commutation Regulation. The argument raisedwas that Atiyat Courts had no jurisdiction to hold an investigation into hisEclaim regarding commutation. This Court held as under:

“8. We regret that we find no substance in the contentionsadvanced before us by the appellant’s Counsel. There is no reasonto limit the jurisdiction of the atiyat Courts established under theAtiyat Enquiries Act, 1952. They are competent to make AtiyatFenquiries as to claims to succession to any right, title or interest inAtiyat grants and matters ancillary thereto. para 2 of the Statementof Objects and Reasons of Act 28 of 1956 by which theAtiyatInquiries Act, 1952 was amended contains the followingobservation:

“2. Although Jagirs have been abolished, cases of inam enquiriesin respect of several Jagirs are yet to be completed and paymentof commutation sum depends on the completion of such enquiries.It is obvious that in view of the nature of these grants, such enquiriesshould be held in atiyat Courts….”

9. ....These questions, however, have to be decided for ascertainingthe extent of the Paigah for which the appellant claims commutation.There is obviously need for investigation. It is not at all ourintention to say that the evidence on which the appellant relies iseither useless or non-conclusive. Whatever may be the weight ofthat evidence the matter is to be decided by the special courts viz.the atiyat Courts, which have been set up to enquire into the claimsof Jagirdars and Hissedars. Therefore, it is to the atiyat Courtthat the appellant should have gone.”

189. In K.S.B. Ali, the Division Bench of the High Court wasconsidering challenge to the tenders called by the Hyderabad UrbanDevelopment Authority for sale of land situated in Kokapet village. Thedispute was after the death of Nawab Nusrat Jung Bahadur who wasthe holder of the land admeasuring 1635 acres and 34 guntas. The HighCourt held under the Enquiries Act that the power and jurisdiction of theAtiyat Court is confined to make an inquiry into the right, title or interestin the Atiyat grants and hold Inquiry into the claim to succession arisingin respect of such grants. It was also held that all jagir lands vested inDiwani and that the erstwhile jagirdars and hissedars were only entitledto cash grants in whatever name they are called. There was no questionof granting propriety rights under the Enquiries Act. It was held as under:“29. From reading of the above referred/reproduced provisionsof the 1952 Act, and as amended, it could be seen that the powerand jurisdiction of Atiyat Court is confined to making enquiriesinto right, title or interest in Atiyat grants and also holding Inquiryinto the claims to succession arising in respect of such grants.Under Section 3 (pre-amended provision) all Atiyat grants heldbefore the commencement of the Act were continued subject tothe provisions of the Hyderabad Enfranchised Inams Act, 1952.Section 4 made the grants in the Jagir areas or granted by theerstwhile Jagirdars subject to enquiries and confirmation inaccordance with the 1952 Act.

30. As already noted above, the definition of Atiyat grants wasamended by the 1956 Amendment Act and Section 2(1)(b)(i)specifically restricted the Atiyat grants in case of Jagir lands tothe commutation sums payable under the 1359 Fasli Regulation.

xxx

A33. Since all Jagir lands were vested in the ‘Diwani’ and theerstwhile holders (Jagirdars and Hissedars) were only entitled tocash grants in whatever name they are called there was no questionof granting property rights to them under the 1952 Act. If thedefinition of Atiyat grant is construed to comprehend even grantof property rights over Jagir lands, it frustrates the entire schemeBand renders the provisions of the 1358 and 1359 Fasli Regulationsnugatory.”

190. Thus, the writ appeal was dismissed by the Division Bench.A special leave petition was filed by the appellant before this Court.Such special leave petition and the writ petition were withdrawn onC13.12.2007 with liberty to avail alternative remedy. The alternative remedyavailed was of again filing writ petition. The Special Leave Petitionwas dismissed on 4.10.2017 against the order passed by the High Courtin the second round of litigation.

D191. The judgment of this Court reported as Nawab Zain YarJung was case arising out of writ petition filed by the trusteesappointed by the Sovereign, directing the trustees to register the trustunder the Endowment Regulations and to render accounts of the same.When the matter was pending before this Court, Muslim Wakf Boardconstituted under Section 9 of the 1954 Act decided that the trust was aEwakf within the meaning of Wakf Act and steps should be taken forregistration of the trust under Section 28 of the said Act. In thesecircumstances, the question considered was whether registration of atrust under Section 28 of the Wakf Act was valid or not. This Court heldas under:F

“18. It is true that large number of provisions contained in thedocument are consistent with the view that the document createsa wakf as much as they are consistent with the view that it createsa public charitable trust as distinguished from wakf. It is, however,patent that there are some clause which are inconsistent with theGfirst view, whereas with the latter view all the clauses areconsistent. In other words, if the construction for which the Boardcontends is accepted, some clauses would be defeated, whereasif the construction for which the respondents contend is upheld,all the clauses in the document become effective. In our opinion,it is an elementary rule of construction that if two constructions

are reasonably possible, the one which gives effect to all the clausesof the document must be preferred to that which defeats some ofthe clauses. It is not in dispute that if the document is held to be awakf, the directions in the document that charitable purposes shouldbe selected without distinction of religion, caste or creed, wouldobviously be defeated and that undoubtedly supports the conclusionthat the document evidences public charitable trust and not awakf.

19. Besides, the clause on which the argument of dedication isbased cannot be divorced from the provision contained in the saidclause which provides charitable purposes without distinction ofreligion, caste or creed and so, intention of the settlor was to helpnot only charities which would fall within the definition of wakfbut also charities which would be outside the definition and so, thewhole argument of dedication breaks down because the ideadedication is not confined to purposes which are recognised ascharitable by definition of the Act but extends far beyond its narrowlimits. In this connection it may be relevant to recall that it wouldbe competent to the Trustees to substantial part of the income,and may be even the whole of the income, purpose which may beoutside the limits of wakf by virtue of their powers under clause3(c) of the document, and that plainly suggests that the vision ofsettlor was not confined to the narrow limits prescribed by theconditions as to valid wakf.”

192. This Court held that several features of the trust supportedthe conclusion that the trust is not wakf and does not fall within theprovisions of the 1954 Act. This Court held that on the basis of fair andreasonable construction, the document must be held to have created atrust for public charitable purposes, some of which are outside the limitsof the wakf.

193. Mr. Ahmadi has relied upon an order passed by the ChanceryDivision in the case of Hughes. The Chancery Division was consideringSection 70 of the Local Government Act, 1894. Hughes was trustee.The Charity Commissioner found desirable that the land should berevalued by competent valuer vide its letter dated 08.03.1897. Theorder was of payment of some amount by the Hughes. The said orderhas no application whatsoever to the facts of the present case.

194. In Hathija Ammal, the Wakf Board instituted suit beforethe Civil Court for declaration that the property is wakf property thoughit was not published as the wakf property under Section 5(2) of the 1954Act. It was held that Wakf Board should have followed the procedureas required under Sections 4, 5 and 6 or Section 27 of the Act.

B195. In Sri Rama Chandra Murthy, suit was filed by therespondent before the Wakf Tribunal for cancellation of sale deed.The appellant asserted that the property is not wakf property as it wasnot notified in the Official Gazette. An application was filed for rejectionof the plaint. It was held that the Wakf Board has not exercised itsjurisdiction under Section 27 of the 1954 Act or Section 40 of the 1995CAct and therefore, the averment made in the plaint does not disclose thecause of action for filing the suit. It was held as under:“16. Thus, it is amply clear that the conducting of survey by theSurvey Commissioner and preparing report and forwarding thesame to the State or the Wakf Board precedes the final act ofnotifying such list in the Official Gazette by the State under the1995 Act (it was by the Board under the 1954 Act). As mentionedsupra, the list would be prepared by the Survey Commissionerafter making due Inquiry and after valid survey as well as afterdue application of mind. The Inquiry contemplated under sub-section (3) of Section 4 is not merely an informal Inquiry but aformal Inquiry to find out at the grass root level, as to whether theproperty is wakf property or not. Thereafter the Wakf Boardwill once again examine the list sent to it with due application ofits mind and only thereafter the same will be sent to theGovernment for notifying the same in the Gazette. Since the list isprepared and published in the Official Gazette by following theaforementioned procedure, there is no scope for the plaintiff toget the matter reopened by generating some sort of doubt aboutSurvey Commissioner’s Report. Since the Surveyor’s Report wasrequired to be considered by the State Government as well as theWakf Board (as the case may be), prior to finalisation of the listof properties to be published in the Official Gazette, it was notopen for the High Court to conclude that the Surveyor’s Reportwill have to be reconsidered. On the contrary, the Surveyor’sReport merges with the gazette notification published under Section5 of the Wakf Act.”

196. The land dedicated for pious and religious purpose is notimmune from its vesting with the State. In Khajamian Wakf Estates v.State of Madras,[83 ]the validity of the Madras Inam Estates (Abolitionand Conversion into Ryotwari) Act, 1963 (Madras Act 26 of 1963); theMadras Lease-holds (Abolition and Conversion into Ryotwari) Act, 1963(Madras Act 27 of 1963) and the Madras Minor Inams (Abolition andConversion into Ryotwari) Act, 1963 (Madras Act 30 of 1963) was subjectmatter of challenge on the ground that the material provisions in thoseActs are violative of Articles 14, 19(1)(f) and 31 of the Constitution. Theimpugned Acts were said to be providing for the acquisition by the Stateof the “estate” as contemplated by Article 31-A. These legislations wereundertaken as part of agrarian reform. In regard to the Inams belongingto the religious and charitable institutions, the impugned Acts did notprovide for payment of compensation in lump sum but on the otherhand provision is made to pay them portion of the compensation everyyear. The Constitution Bench held as under: -

“12. It was next urged that by acquiring the properties belongingto religious denominations, the Legislature violated Article 26(c)and (d) which provide that religious denominations shall have theright to own and acquire movable and immovable property andadminister such property in accordance with law. These provisionsdo not take away the right of the State to acquire property belongingto religious denominations. Those denominations can own, acquireproperties and administer them in accordance with law. That doesnot mean that the property owned by them cannot be acquired.As result of acquisition they cease to own that property.Thereafter their right to administer that property ceases becauseit is no longer their property. Article 26 does not interfere with theright of the State to acquire property.”

197. In view of the above, we pass the following order:

i)The Civil Appeals are allowed. The orders passed by theHigh Court are set aside.

ii)The Errata notification dated 13.3.2006 is quashed. TheLand admeasuring 1654 Acres and 32 guntas vest with thestate and/or Corporation free from any encumbrance.

Aiii)In terms of Section 10(2)(i) of the Commutation Regulation,90% of the gross basic sum referred to in Section 4 of theCommutation Regulation is payable to the Dargah. Thearrears shall be calculated and paid to the Dargah within 6months.

Biv)No order as to costs.

CIVIL APPEAL NOS. 10771 OF 2016, 10772 OF 2016 AND10774 OF 2016

198. These appeals are on behalf of alleged tenants or pattadarsunder the jagirdar. It has been asserted that they started paying rent toCthe State after abolition of jagirs and claim possession on some part ofthe land which is now part of the impugned Errata notification. Thearguments raised by the appellants have been incorporated in the mainjudgment. For the reasons recorded above, the appellants are at libertyto seek remedy for the redressal of their grievances before an appropriateDforum in accordance with law. These appeals are accordingly disposedof.

Bibhuti Bhushan Bose(Assisted by : Aarsh Choudhary, LCRA)

***END OF 2022***

Appeals allowed.